§
The noble Lord said: In substance, Amendment No. 1 is reflected by subsection (2) of Amendment No. 8. Amendment No. 8 would leave out Clause 1 and set up a new regime. If Amendment No. 8 were to commend itself, all amendments tabled to Clause 1 would fail. There is a conflict of conception, which I hope may be resolved in favour of this and other amendments. There is no pre-emption and, indeed, notice has been given of the intention to move that Clause 1 do not stand part.

§
Against that background, the amendment would remove what is a grave sexual assault, hitherto not understood or defined as rape, from the redefinition of rape proposed by Clause 1(1)(a). The Oxford Latin dictionary renders rapio as ravishment, rape of the Sabines, and fellatio as a sexual perversion which, according to in-house medical advice of the highest order, carries the dire risk of infection from both old and new-age diseases.

§
Without consent, or if enforced, it is a serious sexual assault which should constitute a specific offence, but it is not rape as ordinarily understood or defined, nor is it readily intelligible as such to any jury. Albeit that the structure of the Bill affords an opportunity to set up the specific offence, such is not the concern of this amendment. That opportunity will be considered on Amendment No. 11.

§
The main distinction between the specific offence and rape is the risk of pregnancy and—without becoming emotional or too detailed—everything that that entails; all the consequences of that risk. On Second Reading, noble Lords who have had the conduct of rape cases and who have had to direct—oh dear, we are doing it again. This is the third time that the noble Baroness has intervened when I am trying to address the House.

I am so sorry to have to do that. I was trying to make quite a serious point. On Second Reading, noble Lords who have had the conduct of these rape cases and have had to direct juries in them spoke about the unacceptable effects of proposed redefinition. No doubt they will speak again today. Your Lordships may wish to take due account of the practical experience of such noble Lords, including the noble and learned Lord, Lord Lloyd of Berwick, whose hallmark of approval for this amendment is acknowledged with gratitude, and even more gratitude that he is in his place.

The Government want to change the law. What is the justification? As yet, none has been adduced. There is concern about the conviction rate in the consent cases of rape as now and hitherto defined. But that bears no kinship with this proposed redefinition. Is this some form of placebo? If not, what is the justification? As yet, there is no justification. I have read the report of Second Reading more than twice. There is none. Let us hear what it is today.

There is little else to be said. In the end, it is a lay question—not a legal question—as to what your Lordships feel is a due and fair way of administering justice. It is a matter of perspective. The perspective of the noble Baroness, Lady Mallalieu, recorded in her Second Reading speech, may commend itself to your Lordships as it did on that occasion. She said that rape is the more serious offence and that,
To extend the definition [of rape] in that way is to diminish the seriousness of the label attached to a serious offence".—[Official Report, 13/2/03; col. 851.]
I beg to move.

I put my name to the amendment for the reasons given by the noble Lord. Lord Campbell of Alloway, and for the reasons so well stated on Second Reading by the noble Baroness. Lady Mallalieu. I then expressed my complete agreement with her and I am pleased to see her in her place. I can put the reason in one sentence. It is almost always a mistake to allow the statutory definition of a crime to depart too far from the general understanding of that crime, especially in a crime so serious as rape.

For centuries, rape has been understood as sexual intercourse by force, fear or fraud, or—as we would now say, putting it the other way round—sexual intercourse without the full and free consent of the woman. That is what rape still means to the man in the
1050
street. For centuries, penetration per anum has been known as buggery. Non-consensual buggery was always a very serious offence, but it was not regarded as the same offence as rape.

I remember well a case at the Old Bailey when I was a judge—it was not a case I was trying—in which the defendant denied with indignation that he had raped the complainant. But he went on to say, almost as an after-thought, that he had buggered her instead. Sadly for him, the indictment was immediately amended and there was not much he could do to avoid a hefty prison sentence. But for him, and I suspect a great majority of his fellow citizens, rape was rape and buggery was buggery.

Nevertheless, I understand and fully accept the reason why rape had to be redefined in law so as to include the non-consensual buggery of a man. And once that was accepted, it had also to include the nonconsensual buggery of a woman. But why should it include the non-consensual penetration of the mouth? That is the question we must consider in dealing with the amendment.

The change in respect of buggery was brought about by Section 143 of the Criminal Justice and Public Order Act 1994, but not everyone realises—I certainly did not—that the original draft of that clause included penetration of the mouth as well as penetration of the anus as part of the definition of the crime of rape. However, penetration of the mouth was not accepted by the Conservative government when Mr Michael Howard was Home Secretary, and it was not pressed by the Labour opposition.

Therefore, the question I must ask both Front Benches is: why have they changed their minds? What has happened since 1994 in respect of forcible penetration of the mouth to show that the law has not been working? If there is no reason to believe that the law has not been working, I am wholly unpersuaded of the need for a change now unless we are simply going to change the law for the sake of changing the law.

I doubt whether the Minister remembers, but on Second Reading he suggested it might be useful for me to read the whole of the voluminous evidence contained in Part 2 of Setting the Boundaries. I regarded that suggestion as a challenge, which I duly accepted. As a result, I can say that the only evidence I can find in the whole of that volume which relates to the forcible penetration of the mouth came from a research project carried out in 1994—it happens to be the same year as the Criminal Justice and Public Order Act—referred to at page 203.

That case concerned a research project carried out among homosexuals. Out of the 219 cases considered, 90 per cent were charged as rape—that is, penetration per annum—and in only 10 per cent of the cases was the offence confined to penetration of the mouth. Obviously, that would be insufficient to make a change of the law now necessary. That is the only evidence which supports the move now proposed by the Government.

1051
I turn to the reason for leaving the law as it is. It is simply this: most people would accept the point made by the noble Lord, Lord Campbell, that while nonconsensual penetration of the anus is a serious offence, it is less serious than penetration of the vagina. The reason generally given—and the reason given by the noble Lord, Lord Campbell—is the risk of pregnancy or the transmission of venereal disease or AIDS. But I believe that the real reason lies deeper than that. Penetration of the vagina is the more serious because the worst is always the corruption of the best. And forcible penetration of the vagina is a corruption of the deepest and tenderest of emotions of which human beings are capable. If I am right about that, and if penetration of the mouth is indeed less serious than penetration of the vagina, as I believe it to be, by including penetration of the mouth in the crime of rape, one is, as the noble Baroness said, diminishing the crime of rape itself. We should not do that without very good reason.

I accept that there are some countries where forcible oral sex has been included in the definition of rape. The South African Law Commission proposed that it should even include penetration of the nose and the ears, although I am hound to say I find that hard to imagine. In any event, whatever other countries have done is no reason for us to follow.

No doubt in reply the Minister will say that oral penetration is a serious offence. So it is and we all agree about that. But why is it not sufficient to include it in Clause 3, since that clause also carries with it a life sentence? Surely, that will send out a sufficient signal—something which Ministers are always anxious to do—if a signal is indeed needed.

I have not put my name to the amendment tabled by the noble Lord, Lord Campbell. on that point because I am not altogether happy with the drafting and I would in any event keep the sentence to one of life imprisonment. Doing that, a new subsection (1) to Clause 3 would be so easy to draft. It would not even mean that the heading of the clause must be changed. It would read something like:
(1) A person (A) commits an offence if—(a) he intentionally penetrates the mouth of another person (B) with his penis,(b) B does not consent to the penetration, and(c) subsection (3) applies".
I hope that the Minister will give serious thought to that way of approaching the matter. It will achieve all he wants.

I rise to speak briefly in support of the amendment tabled by the noble Lord, Lord Campbell of Alloway, and to support what has just been said by the noble and learned Lord, Lord Lloyd of Berwick. At present, non-consensual oral sexual intercourse is dealt with in the courts in one of two ways: either as an indecent assault—which already carries heavy penalties—or, if rape has taken place, as an aggravating factor that will increase the ultimate penalty imposed. It may be that that is not sufficient
1052
and that a separate offence should be created to mark the gravity of this type of indecent assault, but for the reasons that have just been set out before the Committee, I believe that it would be wholly wrong simply to take the particular activity and put it in with the definition of rape.

I say that for two reasons. First, ordinary members of the public, in particular young people, draw a clear distinction between the two acts. I know that to be the case from my experience in the criminal courts, often dealing with young offenders in relation to sexual offences and thus learning something of the somewhat curious world—one that is remote from mine—of young people today. As I have said, a clear distinction is made. For example, a young girl may well be ready to consent to what is known in the estates of south London as "giving a shiner", whereas not for a moment would she dream of having full sexual intercourse.

Secondly, the legislation will deal primarily, although not completely, with younger people. However, the legislation must also speak to those ordinary people who serve on juries. They will have to look at a particular set of facts and decide whether what they have found fits the label of rape, which is something that juries take extremely seriously. I fear that an act is to be included which, for ordinary people, is not rape. I have discussed this with a number of people since the matter was raised at Second Reacting. The usual response has been, "What planet are those people living on? Of course it is something quite different. It is serious, but different". Once you begin to import a set of facts which in the minds of those who will be trying such cases does not meet the label of rape, then difficulties will arise. I am sure that people serving on juries will acquit when there should not be an acquittal. There should be a specific conviction for a specific offence.

A number of suggestions have been made about how that might be done. The noble and learned Lord, Lord Lloyd, has suggested one way, while another is that set out by the noble Lord, Lord Campbell of Alloway, in Amendment No. 11.

I understand that the Minister has come under pressure from victims of such offences. They regard the offence as being as unpleasant as rape, and they may be right about that. If they are right, then we must accept it and ensure that the law is able to meet their concerns. But it is also different from rape. That is why I say that the two should not be put together.

The Minister also has the police telling him to follow this course, but to that I can say only that the Criminal Bar Association and many other bodies feel that it will be a mistake, for the reasons I gave at Second Reading. The change would alter the label of rape in a way which I believe would weaken the seriousness of that offence. Furthermore, I think that we could face a real danger of seeing acquittals in cases where juries feel that the label is not deserved in light of the particular facts of the case.

Despite what he may have been told by his officials, by pressure groups and by others, I hope that the Minister will see a way to meet the concerns of victims
1053
which does not undermine the prospect of correct convictions. That can be done by setting out in the way other noble Lords have suggested a separate, serious offence to mark the gravity of this kind of behaviour.

The noble and learned Lord, Lord Lloyd of Berwick, asked a fair question which deserves a fair answer. He asked what has changed since 1996 to justify a change in the definition of the crime. We have here a case where the law is adapting, as the law has done for centuries, to a change in the culture within which it operates. It is adapting to a change in what is perceived as rape.

The noble and learned Lord stressed that what is distinctive about rape is that it carries the risk of pregnancy. But of course thereon he makes his own argument felo de se as soon as he includes penetration of the anus, which does not carry any such risk. That recognises immediately that there may be something akin to rape which does not carry that risk.

Part of this change in the culture has been an increasing recognition of the fact that there is such a thing as male rape and that, qualitatively, that kind of assault has a great deal in common with the other kind of rape. Thus treating them as the same offence is permissible. Furthermore, there has been a real change in the perception of the offence of rape against a woman. It concerns not only the risk of pregnancy, which because of effective contraception has lessened somewhat. Rather, rape is now perceived more as an assault against a woman's privacy, her dignity, her self-respect and her right to be herself. In those respects, in the forcible invasion of privacy, intercourse through the mouth or through the anus may partake of many of the characteristics of the other kind of rape. It is an assault against a woman's dignity.

The noble and learned Lord might like to consider the parallel of indictments for treason, which technically involves pursuing the king's death. Early indictments for treason tended to set out specifically that the acts were undertaken to "the danger of the life of the said Lord King". But as we come into the 17th century, increasingly the indictments state that acts of treason are those committed, "against our sovereign Lord the King, his Crown and dignity". One understands perfectly well what is meant by that.

Over the past 10 years our concept of rape has changed, as indeed I have changed my own mind. The concept of rape is now an act against a lady or, as it might be, a gentleman—if I may so put it—against their crown and dignity. I would be happy to see the Bill remain as it is.

I wish to refer briefly to those organisations not mentioned by my noble friend Lady Mallalieu which believe that this amendment should not be carried. I cite bodies such as Justice, the Rape Crisis Federation, the Campaign to End Rape and Women Against Rape. People in those groups work at the sharp end of the problems. They do
1054
not sit in a courtroom arguing the facts of a case; they have experienced them. They feel that the amendment should not be carried.

I should like to mention in particular the Metropolitan Police, which supports the widening of the definition of rape to include penetration of the mouth. From the experience of the police—it has a great deal—this is as serious an offence as rape under the current definition and should be recognised as such. The police believe that it is equally as damaging and traumatic as vaginal or anal penetration and should not be seen as a lesser offence.

I accept that all noble Lords have made the point that this type of assault is a very serious offence. However, I am concerned that if it is removed from this clause, in effect it will become a lesser offence. I do not believe that that is right. We must send a clear message to those who have suffered, to those who work at the sharp end of these problems and to the lay people referred to by the noble Lord, Lord Campbell of Alloway. All those parties say that the Government have got it absolutely right.

I do not believe that the matter is a question of the risk of pregnancy or disease; in a sense those issues are peripheral to the central point. We are discussing here the suffering, trauma and problems of women who have faced this kind of assault. The amendment should not be supported.

Something has been pointed out to me that I want to mention to noble Lords. As far as oral penetration is concerned, most people have a set of teeth. Clenched teeth can provide quite a good defence. Indeed, not only can they provide a good line of defence, they can be an aggressive form of defence because teeth can also bite. For that reason, it is possible that oral penetration should be considered a lesser offence than the other two.

Everyone is rightly agreed that forcible oral penetration is a serious offence. The only question is how it should be labelled. At the outset of the Bill, the noble and learned Lord. Lord Falconer, has a simple choice about whether or not to accord to common sense and continue to use the word "rape" in the sense in which it is understood by the populace.

When we are told what is the generally accepted attitude and understanding of the ordinary man in the street—and, particularly, the young man in the street—I find the speech of the noble Baroness, Lady Mallalieu, more convincing. and her experience more telling, than that of the noble Earl, Lord Russell.

We all know what rape is. The Government can either use "rape" in the way in which it is understood by the populace and have a separate crime for forcible oral penetration; or they can pervert the word "rape", as the Bill does at the moment and have people going around saying, "It is ridiculous. I have been convicted of rape but I didn't rape her at all; I penetrated her mouth". As the noble Baroness, Lady Mallalieu, made plain, people will not understand.

1055
I urge the noble and learned Lord, at the very outset of the Bill, to display a little common sense and give way to this extremely sensible amendment.

I hesitate to speak again, hut does the noble Viscount believe that victims, the rape crisis people and the Metropolitan Police do not understand the consequences of the act? They understand them clearly. There may well be people on the street who do not consider it a serious act—but it is, and people who have experienced it know that it is.

The noble Baroness clearly did not listen to me. I did not say it was less serious; I said it was different. You do not improve a crime of robbery by calling it arson. It may be equally serious, but mislabelling it with a word that people do not attach to it is silly.

In considering the problem I have tried to put myself in the position of a juror, something that I have never been. It seems to me that, whichever way round it is, I would like to be directed by the judge at the end of the trial as to whether or not "rape" includes forcible oral sex. We are talking about forcible sex and the dangers attached thereto.

As to which side of the argument I would come down on, I believe that all forcible sex should be classed in the same category. Whether it is called "rape" or anything else does not particularly matter; to me, it is exactly the same.

I am grateful to my noble friend Lord Campbell of Alloway for raising the issue of whether oral penetration should be included within the definition of rape. We debated the subject at Second Reading and we should debate it fully as the Bill proceeds. As at Second Reading, I have listened carefully to the different views expressed.

I find this a difficult area. I have no doubt that nonconsensual oral penetration is equally as unpleasant, serious and traumatic for the victim as non-consensual vaginal or anal penetration. That was the finding of the report Setting the Boundaries. I do not know on what evidence the finding was based, but the report certainly came to that conclusion. It is a serious issue from the victim's perspective. We on these Benches do not object to the formulation of the offence of rape as it stands in Clause 1, although, equally, we would not object if a separate offence of non-consensual oral penetration was devised.

I know that my noble friend has tabled another amendment on the creation of a separate offence. As the noble Baroness, Lady Gould said, it is very important that if a separate offence is created it should not be considered a lesser offence, as indeed my noble friend's amendments currently have it. If it is decided that the word "rape" cannot encompass oral penetration, a separate offence could proceed provided it was regarded as a very serious offence.

I question the Government's approach to oral sex. In the Bill they have placed non-consensual oral penetration on a par with non-consensual vaginal and
1056
anal penetration. But elsewhere, the Government—in the guise of the departments for health and education—are backing a scheme pioneered by the University of Exeter to teach children about the so-called levels of intimacy that can exist short of full sexual intercourse. Oral sex is one of those levels of intimacy.

Schoolchildren are being taught that consensual oral sex is of a lesser order than consensual vaginal or anal sex. They are being taught that it is not full sex. So how can we expect those children to grow up to see non-consensual oral penetration on the same basis as non-consensual vaginal or anal penetration? If a generation grows up believing that it is of a lesser order, we shall see the law fall into disrepute.

I apologise to my noble friend. I am intervening only because the Committee should not, quite innocently, be misled. I took the advice of the noble Lord, Lord Walt on of Detchant, and of my noble friend Lord McColl. Having read the Exeter story, I said, "What about it?" They said that the dire risk of infection is precisely the same. I shall not go into details, but I gather that it is. I hope that my noble friend will forgive me for intervening.

I am grateful to my noble friend for that information. As I understand it, schoolchildren are being taught that oral sex is permissible as a lesser order than full sex in order to restrict the risk of pregnancy. The issue of sexually transmitted diseases may be part of it, but the drive to reduce teenage pregnancies is the major issue.

When the noble Baroness says that it is for the purposes of restricting the risk of pregnancy, is she not making very clear the distinction between the purposes of health education and those of the criminal law?

I am grateful for that thought. On the one hand, the Government are saying one thing in relation to health education and the teaching of attitudes towards certain sexual behaviours, and, on the other, enshrining a different approach to different kinds of sexual behaviours in law. That may cause a conflict because, in due course, these children will grow up and, potentially, commit these offences not understanding the differences, or they may find themselves on juries not understanding the distinctions that have been made.

These are very important points in relation to the workability of the Bill. It is an issue that will be raised in amendments to several clauses. It is most important that we produce a Bill that is workable in practice. The concern I raise is that if society evolves an attitude towards oral sex which is different to the one that exists in the way in which the offences are framed in the Bill,
1057
we shall be storing up trouble for the future. I raise my concerns on that basis. I shall listen carefully to what the Minister has to say about them.

I had not intended to speak in the debate. The noble Lady, Lady Saltoun, mentioned one way of perhaps being able to stop oral sex being forced upon one; she suggested that we all have teeth we can clench. But we have to think very carefully about the circumstances in which rape takes place and the feelings of the person being raped, whether it is a vaginal, anal or oral rape. Victims are undoubtedly traumatised; they are in great fear and, very often, in great danger. Unless someone actually bit off the man's penis, which I have no doubt would incapacitate him, I suggest that it would be a very dangerous thing to do. It would enrage whoever was perpetrating the crime and, I fear, make matters much worse for the victim.

The noble Lord, Lord Campbell of Alloway, asked about the need for change. In 1990, the recorded crime statistics show that there were 3,391 complaints of rape, with a conviction rate of 25 per cent. That may not seem particularly high, but that was the figure in 1990. The figures for 2001–02 show that complaints of rape increased to 9,008. Those complaints have not been withdrawn but have been pursued. But by now the conviction rate is 7 per cent, not 25 per cent. It is clear that the framework of the law needs to be adjusted and improved.

For those of us who say and will continue to say throughout these proceedings that the Government should trust the judge and trust the jury to do their job, they can do their job only if the framework is right. Our main criticism of the Government's proposals is not that they are attempting to change things—we think that the framework has to be changed—but that their mechanisms are wrong and confusing, and will lead to fewer convictions rather than more.

On the specific amendment, the Committee will see when we reach Amendment No. 8 that we have attempted, in dealing with labels, to move away to a degree from the bare charge of rape—which, in itself, is a disincentive to conviction—and have included the phrase,
sexual violation by unlawful connection
which is where the oral sex comes in. Indeed, in subsection (4)(b) of the proposed new clause, sexual connection means,
connection between the genitalia of any person and any part of the mouth or tongue of any other person".
I believe that that meets the objections that have been voiced on this amendment which are concerned with making clear precisely what sort of conduct is being punished.

Members of the Committee will also observe that in the new clause proposed in Amendment No. 8 and that proposed in Amendment No. 10, the sentence of imprisonment for sexual violation by rape and by
1058
unlawful connection is precisely the same. As previous speakers have pointed out, the same dangers, including HIV infection and others, can result from penetration of the mouth by the genitalia of anybody, as well as the use of other objects.

I had not intended to speak on this amendment, but this is a lead-in to what I propose to say on Amendments Nos. 8 and 10. There has to be an improvement, but we want the legislation to be effective, so that the guilty are punished and the innocent are not wrongly convicted.

I am at all times reluctant to agree with the Liberal Party, but I find myself entirely at one with the noble Lord, Lord Thomas of Gresford, on that point. It is not only in the streets of south London that the difference between oral sex and full sex is understood; it is also understood at the very highest levels—indeed, in the office of the President of the United States, as noble Lords will remember.

It seems ridiculous to try and expand a crime to include all sorts of other things which are not the same. It is possible to do things that are nastier and worse than rape. I would include genital mutilation as such a crime, but it is not rape just because it is horrible and sexual. It is much better to keep these things in separate pots, to address the jury in a language they understand, to make the crime just as serious and deal with the perpetrator just as seriously, but to keep the English straight.

I wish to clarify one point that has arisen on several occasions. It is my understanding that penetration through the anus gives rise to a higher risk of transfer of HIV/AIDS than through the vagina or the mouth. I may be incorrect; if there are medical practitioners here, perhaps they can correct me. It is important to be clear on that point.

I support the point of the noble Baroness, Lady Gould, with regard to looking at the issue from the position of the victims. I am quite prepared to be called silly after what I say. However, having spent most of my life dealing largely with child sexual abuse as well as other forms of abuse, I feel I can speak from the victims' point of view. Although I have not been a victim myself, for which I am grateful, I can see that there may be great value in specifying these issues. I have spent time in court too and think that if the offences are absolutely clear we have a much better opportunity of getting convictions than if there is any obscurity. I have talked to many young women who have lost their case on a technical point, so clarity is essential.

It is also essential for us to understand the trauma and pain of young women and children who have experienced penetration in the mouth by the penis. Many men know that that is one way of making sure that victims do not show certain signs. Thankfully, DNA is taking us further, but many men believe that if
1059
they assault a young woman or a child without leaving marks, they are much more likely to get away with the offence.

We have to have a real understanding of this matter, not a person-in-the-street understanding. We all have a view about what we read in the newspapers and may feel that some young men have been treated worse for a hit of roughness they should have got away with. Many young women who have suffered describe the trauma that it leaves them with for the rest of their life. They cannot make relationships, their marriages break down and they have difficulty with their children. When making these decisions, we must bear them clearly in mind.

Members of the Committee have indicated that the amendment would remove non-consensual penile penetration of the mouth from the rape offence as it presently stands in Clause 1. Under existing legislation, forced oral sex is charged as an indecent assault. According to the evidence submitted to the sexual offences review by victims and victim support groups, forced penile penetration of the mouth is a very serious form of assault that can be as horrible, as demeaning and as traumatising as other forms of forced penile penetration and is as psychologically harmful as vaginal and anal rape, if not more so in some cases. It is not unusual for women and children who have been violated in this way to develop long-term difficulties in eating and drinking. They may also have difficulty in visiting the dentist and a whole range of psychological trauma on which the noble Baroness, Lady Howarth, has only touched.

I should like to indicate some of the evidence that was received by the sexual offences review. Quotes included:
Rape should be extended to include oral penetration because it validates the seriousness of the offence, the impact and effects, ie sexually transmitted disease of the mouth and the throat".Defining oral penetration as rape is really important—it is just as had to be forced to have oral sex. This will mean there will need to be a new way of thinking".The trauma caused by penetration without consent of other than the vagina is directly comparable and defining oral penetration as rape is appropriate".Adult abusers commit sexual assaults by penetration of the mouth in the knowledge that there is a lesser penalty".
Other pieces of evidence confirm the trauma caused by such acts.

If that is so, there are three options open to us. First, we include oral penetration within the definition of rape. What are the reasons given against that'? The reason given almost exclusively by lawyers is that ordinary people do not understand rape to mean oral penetration. I say with the greatest respect that the noble Lord, Lord Skelmersdale, gave the answer to that. As regards proceedings, if the judge gives a direction as to what is meant, just as there was no difficulty in relation to anal intercourse, there would be no difficulty in that regard in relation to oral penetration of the sort described. Therefore, I do not think that there is force in the argument that juries would not convict in that respect.

1060
Secondly, I refer to the argument that what we are discussing is too far away from the common man's understanding of what the word "rape" means. The purpose of the redefinition of "sexual offences" is that they should reflect victims' experiences. If after listening to what victims have said the view is reached that what they have suffered is just as serious as rape, just as anal intercourse has been appropriately described as rape, so too can oral penetration be so described.

Lord Lloyd of' Berwick

I am grateful to the noble and learned Lord for giving way. Anal intercourse had to be brought within the definition of rape for reasons of discrimination. Those reasons had nothing whatever to do with oral penetration.

I say with the greatest of respect to the noble and learned Lord that I believe he is missing the point. The point is whether the judicial system is able to describe oral penetration as rape. In my view it is, just as it was, for whatever reason, in relation to anal intercourse.

The next reason given for not including the provision we are discussing is that it diminishes the importance of vaginal or anal intercourse on the ground that oral penetration is not as serious. It is for the House to judge the evidence put before it, particularly by the noble Baroness, Lady Howarth, as to how seriously victims regard oral penetration. I say with the greatest of respect that, as the noble Lord, Lord Campbell of Alloway, said, it is an issue to be decided not necessarily on a lawyer's view of the most appropriate way to deal with it, but on the basis of granting justice to the victims of that particular crime.

We have thought long and hard about the matter. As the noble Baroness, Lady Noakes, said, it is a difficult issue. We believe that the right course is to treat oral penetration as one form of rape as that indicates its seriousness, does not lead to problems in relation to the way in which proceedings are dealt with in court and reflects the concerns of victims. An alternative is advanced; namely, in effect to create a new offence of oral penetration. We believe that that over complicates the situation, separates out oral penetration from rape, which is traditionally the most serious sexual offence, and that it is unnecessary. We have listened carefully to the debate both inside and outside the House. Indeed, I was privileged to have a conversation with the noble Baroness, Lady Mallalieu. As I say, this is a very difficult issue but we believe that we are taking the right course in this regard. Therefore, I invite the noble Lord to withdraw the amendment.

I wish to make a very short speech. I am grateful to all Members of the Committee who have spoken. I totally agree with the noble and learned Lord, Lord Falconer of Thoroton, that this is in effect a lay matter for the judgment of this House as to what constitutes due administration of justice. It is not a legal matter. I agree with the noble and learned Lord that as this is a matter for the House to decide, it would be quite wrong for it to have to
1061
decide it today. There has been a constructive debate. There is a balance of opinion. I shall not deal with those Members of the Committee who spoke on one side of the argument and those who spoke on the other, but there is a balance of opinion. I should like to have the opportunity to consider the speeches in some detail. In begging leave to withdraw the amendment, I may return to it, if so advised, on Report. I beg leave to withdraw the amendment.

§
The noble Lord said: I am afraid that this amendment is far more complicated. Amendment No. 2 seeks to leave out the words "or (3)". It is a paving amendment to Amendment No. 3 which seeks to leave out subsection (3) of Clause 1. In the context of that amendment, I beg leave to speak to Amendments Nos. 4 and 5 in the name of my noble friend Lady Noakes as they are sandwiched between my Amendments Nos. 3 and 6. However, I speak to them briefly at this stage.

§
Those amendments of my noble friend oblige an accused to match his own characteristics with those of an abstract reasonable person in substitution for proof of his actual intent. That defeats the presumption of innocence and fails wholly to mitigate the manifest injustice of subsection (3) of Clause 1, unamended, which removes the defence of honest but mistaken belief as to consent.

§
Amendment No. 2—a paving amendment—also serves as a paving amendment to Amendment No. 6, which seeks to leave out subsection (4) of Clause 1. Subsection (4) of Clause 1 applies Clause 78. Notice has been given of the intention of certain Members of the Committee to oppose the Question that Clause 78 stand part of the Bill. In that context, I beg leave to speak briefly to Amendment No. 7 in the name of the noble and learned Lord, Lord Falconer of Thoroton.

§
I am advised that I have to explain that Amendment No. 2, which I move as a paving amendment to Amendment No. 3, renders Amendment No. 3—to leave out subsection (3) of Clause 1—consequential. However, the paving amendment to leave out subsection (4) of Clause 1—Amendment No. 6—is not consequential and has to be moved separately.

§
Having got over that, I turn to the merits of the argument. The broad merits of the argument to leave out subsections (3) and (4) of Clause 1 had the general support of your Lordships on Second Reading, save as to leave out subsection (3) of Clause 1, which was not spoken to by this Front Bench. The object of the subsections is, apparently, to meet the concern of the low conviction rate—to which the noble Lord, Lord Thomas of Gresford, referred—in consent cases and to bolster up convictions.

§
This morning, I read one of those sad pamphlets from Women Against Rape, which said that they could not count,
on the reasonableness of those who conduct the trials—judges, lawyers, defence or prosecution".

§
It is difficult to meet that type of concern and I do not propose to try to do so. However, there is another concern on the other side of the balance. One has to take into account the erroneous convictions based on entirely false accusations. One does not find Women Against Rape or other such organisations writing much against those.

§
On the balance of what is due and fair administration, one may well ask whether the real victim is not the person who has an erroneous conviction. Dire consequences may follow, including loss of his job and marriage. When he comes out of prison after seven years, he may find that, by some method such as DNA, he can prove that he was falsely convicted—and the Court of Appeal may so decide. Are such men not worthy of consideration? They are the real victims of these consent cases. Let us not overlook the concern and disappointment of the complainants who are unable to convince the jury of their evidence. I have sympathy for them, but one cannot disturb the entire balance of justice to accommodate sympathy.

§
Where does the true balance of due and fair adjustment lie between the parties in these cases? Members of the Committee may find that the assessment of the noble Baroness, Lady Mallalieu, commends itself. On Second Reading, she said:
False allegations are usually made in the context of a preexisting relationship … Juries rightly see that such allegations are easy to make and difficult to disprove. Juries are correctly wary of convicting unless there is other evidence or evidence of violence".

§
On Clause 1(3) and (4), she said that moving the goalposts to try to correct what is seen as an imbalance would not work. She added:
We are importing trouble and difficulties which will lead … to appeals, to test cases and to redefinition".—[Official Report, 13/2/03; cols. 850–51.]

§
On Clause 78, which shifts the burden of proof, the noble Baroness expressed her ultimate degree of alarm. Her speech on that part of the Bill is to be found at cols. 850 and 851 of Hansard.

§
I return to the question of erroneous convictions because we must keep a balance here the whole time. Members of the Committee may have read an article in The Times on 18th March about the British Airways pilot who was convicted of rape by a stewardess on a false allegation. He was sentenced to imprisonment, lost his job and so forth. By chance, he found the flight log, which proved that the allegation was false. His appeal succeeded and the conviction was set aside. Can one just ignore such cases? That man had lost everything. I do not know his present circumstances, but imagine the plight of someone who has lost several years from his life.

§
I draw attention to the speeches made by the noble Lord, Lord Campbell-Savours and the noble Baroness, Lady Mallalieu, in this context. Those speeches commended themselves to your Lordships on
1063
Second Reading, and I believe that they will commend themselves again now. There was no dissent at Second Reading.

§
Amendment No. 3 would leave out subsection (3). The defence of honest mistaken belief is abolished. It was established in 1976 by the Appellate Committee of your Lordships' House. The Crown no longer has the overall burden of proof. The defence is hobbled by conclusive presumptions as to non-consent under Clause 78 (5) to (8). As to establishing consent, the burden on the defence relates to an abstract concept—the conduct of a reasonable person under Clause 78(2). There is no need any longer to prove actual intent. That was the fundamental objection of the noble Lords, Lord Carlile of Berriew, and Lord Thomas of Gresford, on Second Reading. They made that point far better than I could, and I hope that they return to this pitch again today. The sensitive speech made by my noble friend Lord Astor of Hever on mental disability, IQ, autism and so forth in effect torpedoed the concept of a reasonable person as a substitute for the actual intent of the man accused.

§
Amendments Nos. 4 and 5 to Clause 1(3) enhance the obscurity of subsection (3), as implemented by subsection (4), and in no way mitigate the unfairness. I shall deal with the main objections to those amendments when they are moved.

§
The question is whether subsections (3) and (4) should be amended or left out. Those subsections afford manifest injustice and unfairness, enhancing the prospect of erroneous convictions and a spate of appeals against conviction on grounds of misdirection, which surely must lead to redefinition. The criticisms as to Clause 1(4), on Amendment No. 6, have already been dealt with in outline. I am anxious not to go over the traditional time for a speech. I beg to move.

I apologise for speaking at this point. The noble Lord, Lord Campbell of Alloway, makes a number of very important points about the reasonableness element in relation to consent and the rebuttal of presumption in Clause 78. Those issues need to be addressed in detail. They will be addressed in detail in the debate on the amendments tabled by the noble Baroness, Lady Noakes, in the next group of amendments. They will be considered again in the following group of amendments, headed by Amendment No. 7, and again in the following group, headed by Amendment No. 13. Speaking for myself, I intend to save my detailed response to the important points made by the noble Lord until we reach that point. It will be much easier for the Committee to understand the detail of the argument at that point. I hope that the noble Lord will not think that I am behaving disrespectfully when I say that I believe it would be better if we waited until those later groups.

I am grateful to the noble and learned Lord. We have to deal sensibly with this complex affair and his suggestion is entirely appropriate. I am taking the same line as that in my noble friend's amendments—which I am opposing. If we are going to deal sensibly with this, it would be
1064
quite inappropriate to take the opinion of the Committee tonight, as we would not have gone through the process in the objective way to which the noble and learned Lord referred. Is he content?

The last thing that I want to do is incur the displeasure of the Committee by being premature or jumping the gun. However, my objection to Clause 1(3) is that this clause is beyond redemption; and that goes from 1(3) right the way through. In a nutshell, I believe that the present law is perfectly sound and sustainable and that what is proposed will confuse a jury and undermine what is known as the "golden thread"—namely, that you must prove a guilty mind in an accused before you can convict. I do not want to run the risk of being told that I should reserve this for a later stage, if that is what the Committee would wish, but I do not want it to be thought that by remaining silent I concur with what is proposed in relation to Clause 1(3).

Again, it is a matter for the Committee. I should think that this is the most reasonable way of dealing with it. When we come to reasonableness, with which we shall deal in detail, the noble and learned Lord can unleash his volleys in relation to Clause 1(3). I think that that would be most appropriate because the amendment moved by the noble Lord, Lord Campbell of Alloway, has put rebuttal of presumption and reasonableness together in one amendment. That is quite a tasty feast all at one go and we should separate the two. It is purely a matter of preference. I certainly would not regard the noble and learned Lord, Lord Ackner, as in any way debarred from making his points then.

We will come to it in the next group, headed by Amendment No. 4, and again in the group beginning with Amendment No. 13, which contains the amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick.

I wonder whether I might say a few words now as my name is included in two of the amendments proposed by the noble Lord, Lord Campbell of Alloway. I am dealing solely with Amendments Nos. 2 and 3 and entirely follow the lead given by the noble Lord.

At Second Reading, I opposed the inclusion of Clause 1(3) for three reasons. First, it seemed to me wrong in principle. It is contrary to a basic rule of the criminal law that a person can only be found guilty of a serious offence such as murder, theft, fraud or rape
1065
if he has a guilty mind. The second objection was that Clause 1(3) would be unworkable in practice when applied in combination with Clause 78. The third reason was that the Government have simply not made out a case for such a fundamental change in the criminal law.

It is said that the conviction rate is low and that it could be increased if we were to include a test of negligence in the definition of the crime of rape. It is that, of course, which Clause 1 provides. I am, for myself, in no way persuaded of that. The only result, so far as I can anticipate the result, will be to increase the number of appeals, not increase the number of convictions. For the jury would presumably have to be asked after the defendant had been convicted on which of the two grounds they had convicted him, whether under Clause 1(2) or Clause 1(3). That is always a source of trouble, as anyone who has had experience of dealing with juries will know.

Indeed, as I see it, the trouble with the Bill as a whole, especially in relation to Clauses 1 to 6 and Clause 78, is that its provisions have been formulated predominantly though not exclusively by civil servants, as a result of research carried out predominantly if not exclusively by civil servants. For obvious reasons, they can have had no experience of how to direct juries or how juries in fact think and work in practice. I am afraid to say that that shows through in the way in which the Bill has been crafted. Only two judges are mentioned by name as having been consulted—one from Australia and the other from Scandinavia. I must assume that the Lord Chief Justice has been consulted. I would assume also that the Judicial Studies Board had been consulted. However, they are not mentioned.

One suspects that it was only when the Minister himself got to grip with the Bill that it was first realised that Section 78 as drafted is simply unworkable. Happily, that has been recognised in part since subsection (1)(a) and subsection (2) are now omitted. However, surely one is entitled to comment that that ought to have been realised a great deal earlier. Still, it seems to me that Clause 78 is a nightmare. But I leave that part of the argument to others who will be addressing it more directly on later amendments.

I propose to leave over for now the question of principle involved in this amendment as it is a principle that may seem of more importance to lawyers than to others. It was, I think, the point on which all the lawyers who spoke at Second Reading were unanimous. Instead, I shall start this time with whether the Government have made out a case for any change.

Much of the evidence in volume 2 which is relied on to support a new offence of rape by negligence—that is what Clause 1(3) is; let there be no mistake about that—ignores entirely the practical effect of the 1976 amendment Act. The presence or absence of reasonable grounds for the defendant's belief is always a factor that the jury must take into account. That is what the 1976 Act says.

1066
The argument repeated so often that it is absurd for a defendant to get off on the grounds of honest belief, however unreasonable, altogether ignores the role of the jury. The simple answer is that the defendant does not get off in such a case. I do not have as much experience of rape cases as other judges, but I have some, and I have never heard of a case in which the defendant has got off on the grounds of honest belief where that belief was unreasonable. Juries are no fools. They can tell when the defendant is lying in order to put up a bogus defence. The more unreasonable the defence, the more likely it is that they will convict. If ever there were a crime where the question of guilt should be left to the good sense of juries, with the minimum of statutory interference by Parliament, it is the crime of rape.

Then the Government rely on the low percentage of convictions, and say that that must be due to some deficiency in the law. However, there is literally no evidence to that effect. For example, we all know that the abolition of the doctrine of corroboration, which was supposed to increase the percentage of convictions, had no such effect at all. I suspect that the same will be true if we enact Clause 1(3). Some reliance is placed on the 27 per cent conviction rate in the state of Victoria, compared with our current figure of 7 per cent. In Victoria, the weaker cases are all weeded out in the course of earlier committal proceedings, so they never get to the door of the court. The comparison with Victoria is therefore completely meaningless.

In the final document produced by the Government, Protecting the Public, only one argument is put forward for the new offence of rape by negligence. It contains the following sentence:
We believe the difficulty in proving that some defendants did not truly have an 'honest' belief in consent contributes in some part to the low rate of convictions for rape".
If that belief is based on anything at all, its basis is nowhere stated. My conclusion is therefore that the proposed change will not increase the number of convictions, and will only lead to more appeals.

I return to the question of principle. Some years ago, the House decided that the intention necessary for the crime of murder could be presumed if a reasonable man would have foreseen the consequences of the defendant's act, even though the defendant did not foresee those consequences himself. That decision was so obviously wrong that it did not last long. As the defendant did not have a guilty mind, he could not be guilty of murder. The same is true of every serious crime. Indeed, it is true of every crime, except those of strict liability such as speeding. No one has ever suggested that rape should be a crime of strict liability, and I hope that they never will.

I mention those points only as the Committee should be aware of what is proposed. It has always been the law that a person can be guilty of rape if he knows that the woman is not consenting or he is reckless. However, there is a crucial distinction between recklessness and mere want of care. Recklessness is a guilty state of mind, because the defendant is indifferent to whether the woman is
1067
consenting or not. He could not, as is sometimes said, care less. However, carelessness is not a guilty state of mind. That is what the case of Morgan decided.

Now the Government will change all that, and they will do so contrary to the views expressed by the Heilbron committee—it was set up specifically to consider the case of Morgan—by Parliament in 1976, by the Criminal Law Revision Committee in 1984 and, most importantly of all, by the Law Commission as recently as 2000. They will do so contrary even to the views expressed in their own review. The change is not supported there. The external group was in favour of a change, but the steering group was not. The review sat on the fence.

It might help the Committee if I read out two or three sentences from the review. Paragraph 2.7.5 states:
We also considered the issue of honest belief in consent with very great care".
It sets out the arguments one way and the other and concludes:
However, we were not all agreed on the extent to which the law should be changed in this area. Accordingly we set out the issues in detail below".
Then a little below, paragraph 2.13.8 states:
In balancing these arguments, there was a disagreement between the External Reference Group who unanimously wanted the law restoring to its pre-Morgan state of requiring any honest belief in consent to be subject to a test of reasonableness, and the Steering Group. The Steering Group did not take the ERG's advice on this issue but identified an effective way of fettering an inappropriate use of honest belief, without re-introducing the external test of reasonableness that the courts had rejected".
Finally, paragraph 2.13.14 states:
Accordingly we recommend that the defence of honest belief should be expressed in terms of free agreement, and be subject to limitations as to its use. This does not impose an external and objective requirement of reasonableness on the defendant, as our External Reference Group wanted, but it does reinterpret the doctrine of honest belief as set out by the House of Lords in the Morgan judgement, and provides new conditions",
in which Morgan could operate.
We have five various reviews, none of which support the proposed change. Some confusion seems to run throughout so much of the reasoning, both in the evidence and the Home Office review itself. The review accepts correctly that knowledge or recklessness is the appropriate test for a conviction of rape, but somehow at the same time criticises the so-called defence of honest belief. What is that defence? It is nothing other than the obverse of recklessness. If the defendant has an honest but mistaken belief, he cannot be guilty of recklessness, and the Crown will have failed to prove what the review accepts is an essential element in the offence.

In conclusion, I repeat that the Government have not made a case for change. If they have, I do not k now what it is. The change they propose is based, I suspect, simply on expediency. It is unsupported by any of the distinguished bodies that I have mentioned and is contrary to sound principle.

Before the debate, the noble Lord, Lord Campbell of Alloway, and I agreed that we would deal with these issues during discussion on a series of amendments that are to come. I do not in any way want to inhibit what noble Lords wish to say, but we are slightly approaching this matter with only half the arguments. Members of the Committee will perhaps consider it more appropriate to move on to the next group of amendments in which we can deal with the issue more fully.

It seems to me that Amendments Nos. 4 and 5 illustrate the difficulties and the unworkability—if I may use the expression of the noble and learned Lord, Lord Lloyd—of these subsections. However, the principle of the objective versus the subjective approach to consent arises directly on this issue.

I support that. I had understood that that was how we proposed to deal with the matter—that is, we would take the principle of objective or subjective tests, then go on to deal with my amendments, beginning with Amendment No. 4, concerning the issue of how "reasonableness" works in practice, and then go on to the Clause 78 amendments. I am sorry if I misunderstood what was proposed.

I believe that I have been misunderstood—or, rather, the principle has not been but the machinery has. I understood that I would be moving Amendment No. 2, consequential with Amendment No. 3, and, at the end of our discussion today, would ask for it to be withdrawn so that it may be considered on Report. If we reached that stage today, I would then move Amendment No. 6 on the same basis. I was not suggesting, or meaning to suggest, that somehow or other I would pre-empt either noble and learned Lord in anything they wished to do, but that we would certainly have moved Amendments Nos. 2 and 6 by the conclusion of today's debate.

This is a procedural point. I speak as someone who has been listening with complete fascination to the discussion. My mind is a blank sheet. Members of the Committee may say that it has been that frequently. There seem to me to be two principles. First, do we allow "reasonableness"? If not, then there is no point in discussing the matter further. The noble and learned Lord, Lord Lloyd, raised the question of whether or not we allow it and the matter of the guilty mind. Secondly, if we accept
1069
"reasonableness", then we go on to discuss what my noble friend on the Front Bench said. I raise this point in order to make the issue simple for a simple soul such as myself.

For the third time of asking, I want to address the issue from a different perspective without approaching it with the expertise that the lawyers bring to it. I wait upon them with regard to the adequacy of the drafting. However, as we attend to the detail of these clauses, it is worth bearing in mind that consent is the very foundation of the public understanding of marriage in public law. It is at the heart of the doctrine of matrimony, as expressed in the law.

One may not enter into that institution, with all its rights, duties and responsibilities, without there being manifest consent. That doctrine determines the character of the relationship and the institution that then follows. All matrimonial life must operate on the basis of the consent of the parties. Indeed, if one party, in terms of coming together in bodily union, does not offer his or her consent, that is a ground under a number of circumstances for the dissolution of a marriage.

That doctrine is at the heart of all our law with regard to sexual relationships. The understanding of consent flows out from the public doctrine of marriage to everything else. Whether or not this clause and its subsections are adequately drafted, when it comes to the matter of rape we have a responsibility to be satisfied that we have made adequate provision in public law to demonstrate that consent has been given.

Even if we believe that these proposals do not quite work in terms of the law—we must listen carefully to what those with experience in this area share with us—nevertheless, if in terms of the practice of rape cases in the courts there is an issue about demonstrating consent, then we have in front of us a very serious matter in law. That is so not only in the narrow terms of the understanding of rape but in terms of upholding the public doctrine that is embedded in our understanding of marriage.

I am sure that the interventions of the noble and learned Lord, Lord Falconer, were very well intentioned. I believe, however, that they were confused or at least—to be kind—confusing. The basis of this amendment is that it retains the law as it is—namely, that it is a defence to have an honest belief in consent—and does not impose a new test whereby one is guilty if one is negligent, as the noble and learned Lord, Lord Lloyd, put it. Any question as to what the tests for "reasonableness" are arises only if we have this new definition of the offence. Surely the issue before us at present is whether or not the new idea that the belief must be reasonable is right and should stand.

Let us be clear. What is proposed is that for rape, and rape alone, the concept of what constitutes a guilty mind will change. If I am accused of stealing your property, it is a defence if I show an honest belief that I had a claim of right to that property. That is the
1070
general test of the criminal law. It is now said that in relation to rape we should abolish that test and say that it is an offence only if a person showed a reasonable belief that the other party had consented.

That is a fundamental change in the concept of the law. Why is it said that we should make that change? It is apparently because the conviction rate is very low and, seemingly, the Government are under pressure to change it. The speech made by the noble and learned Lord at Second Reading is somewhat revealing on this issue. He said:
At the moment, only a fraction of sex offences recorded by the police end with a guilty conviction".—[Official Report, 13/2/03; col. 771.]
That is not what he meant. He meant:
At the moment, only a fraction of complaints of sex offences recorded by the police end in conviction".
There is a great danger that we shall forget the very important distinction that not every complaint is valid. The noble Baroness. Lady Mallalieu, pointed out why rape is singularly liable to false complaints. Of course, because the act will also normally take place in private, it is an alleged offence which is singularly difficult to prove. Personally I have no doubt that the reason for the diminishing number of convictions in relation to complaints is that lately people have been encouraged more—I do not disprove this—to complain about date rape, which is much more difficult to prove.

If something is difficult to prove, that may be a reason to alter the system of evidence, or something of that kind, but it is not a reason to redefine the offence so that something is constituted illegal that previously was not illegal. Perhaps one may use a football analogy without being thought to be frivolous: if not enough goals are being scored, you may change the offside rule but you do not suddenly say that in future a corner shall count as a goal. That is what the Government are doing. They are saying that something which was not a crime before shall now be this very serious crime. They are changing the law in relation to rape and nothing else.

It is important that we consider that problem before we go on to consider the difficult and fancy problems concerning what shall constitute the test of reasonableness. I suggest that the next two amendments will demonstrate just how difficult a problem that will be and how one will mire oneself, as the noble and learned Lord, Lord Lloyd, said, and the jury in impossible tests. Be that as it may, before we come to that let us consider whether we really believe that it is right that in rape and rape alone an honest belief that one was not committing a crime is not a defence.

Again, I thank my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Lloyd of Berwick, for initiating this debate. It is important that we debate this matter thoroughly. We had a good discussion on this topic at Second Reading. We are not quite re-running that today. At that time we had two camps. There was the lawyers' camp, in which almost all the lawyers spoke, except the noble and learned Lord, Lord Falconer—he
1071
did not join the lawyers' camp on that day—which objected to Clause 1(3) and the objective test of reasonableness. Another powerful camp at Second Reading, comprised mainly of noble Baronesses and led by the noble Baroness, Lady Gould of Potternewton, who I am sorry is not in her place, felt strongly that we need to consider changes in the law because of very low conviction rates. As a woman, I too am extremely concerned at such low conviction rates. That is why we on these Benches genuinely think it is worth considering whether there is a better way of formulating the offence which would result in more significant conviction rates.

Like many noble Lords I am sure we have all had large postbags on the subject of the Bill. I have not had one representation from outside this place which supports the amendment now before the House, which would do away with Clause 1(3). Many of the groups that wrote in, among which, perhaps surprisingly, is the Criminal Bar Association, have accepted the case for the abolition of the Morgan defence. Liberty comes within that category. The Metropolitan Police believe that Clause 1(3) is necessary because the present law weights the process against the victim and in favour of the assailant. I am sure that those noble Lords who received the powerful submission from the Rape Crisis Federation will have read of the devastating effect on women of rape, the trial process and the impact of what they' perceive as incorrect acquittals.

We should not believe that there is a not strong body of opinion which genuinely supports considering ways of amending the law so as to affect conviction rates. I refer not only to the 7 per cent conviction rates from complaints, but also to the high level of acquittals. Nearly 60 per cent of rape cases involving women result in acquittals. We on these Benches do not find that acceptable.

I shall listen carefully to what the noble and learned Lord says on conviction rates and, in particular, to what the Home Office believes will be the impact of the Bill. There have been many who, if they have accepted the new test, have stated, "But it will not make any difference in practice". We have heard some of that today. That is a serious complaint that needs to be considered. If the proposed change in the law, with all the objections that we have heard, results in not a single extra conviction, there would be legitimate concerns about whether we have taken the right approach. I hope the Minister will be able to comment on how the analysis by the Home Office considered the effect which a change in the law would have had on past cases which have resulted in acquittals or in complaints not coming to trial. Subject to that, we believe that it is worth trying an alternative approach to the Morgan defence, and an objective approach to reasonableness.

Is the noble Baroness aware that after the decision in Morgan in the House of Lords—the one that decided that an honest belief was sufficient—there was a prolonged outcry by the public? When the matter went to Lady Justice Heilbron's committee, the
1072
assumption was that it would report against that decision. It did precisely the opposite and recommended that the law was sound; that there should be an addition to referring to the evidence of what was reasonable, and that it was then re-enacted. Therefore, perhaps the noble Baroness will agree that the public outcry is not much assistance on these matters.

I was aware of the review which took place after the Morgan case, the outcome of that review and the fact that it resulted in the Sexual Offences (Amendment) Act 1976. However, despite that Act, of which we have now had 25 years' experience, we still have a problem with conviction rates. Therefore, I believe it is legitimate to consider again whether the formulation of the law meets the objectives we require.

I have already said that we on these Benches do not find the current framework acceptable, and are seeking to find a way to improve the contents of the Bill. Perhaps I may put matters in context. The latest statistics show that of the rapes which result in conviction, stranger rape—that is what many people consider rape to be: an attack in the dark—accounts for only 8 percent; acquaintance rape, sometimes called by different terms—that can be serious because it can involve a breach of trust or all sorts of problems—accounts for 45 per cent, and marital rape accounts for 45 per cent.

So, stranger rape is not the problem. In cases of that kind, such are the scientific improvements in detecting DNA and tracing it to a particular defendant that conviction rates run as high as 70 to 80 per cent. Accordingly, that is not the difficulty. Consent does not arise in stranger rape. The issue is generally identity: "Can you prove that it is that person who carried out the attack at night", or whatever the circumstances may be, "on the individual complainant?" The problem arises with consent in acquaintance rape and marital rape, which are very difficult to determine in the absence of other evidence. Bruises are generally not enough. A history may perhaps help. Those who want to banish all history from the evidence in a court before a jury are, in my view, mistaken. Such problems need to be resolved in a sensible way.

Perhaps the seeds of the Government's position were found in the seminal work of Helena Kennedy, Eve was framed, published in 1992. Unhappily, the noble Baroness is not in this country, let alone in her place. I am sure it will be strange for her to find that the Government follow her views. Generally, she is in opposition to the criminal justice views of this Government. She put the matter simply. I cannot put it better. She said:
In criminal law it is quite usual to apply a subjective test in deciding whether an accused intended to commit a crime. The mens rea or mental element of a crime is usually based on the intention of the accused at the time. However. there are significant areas of crime where the law imposes an external gauge as to what is permissible. In self-defence, for example, the level of the force used to protect yourself has to be reasonable. To succeed as a
1073
defence to murder, provocation must be words or deeds which would make a 'reasonable man' lose control. The issue therefore arises as to whether there should be a similar rule for sexual offences, with an objective rather than a subjective test. The jury would then be asked whether a reasonable person would have known that the woman was not consenting. The criterion should be absence of consent, not presence of dissent. Making such a change should not be leapt upon in the mistaken belief that it would remedy all the problems, but if a judge had to emphasise to a jury that the man's belief must be reasonable it would undermine the theory that women say 'no', meaning `yes'".
The noble Baroness put the issue some time ago. My only problem with that passage is that she refers to "the reasonable person" and the "reasonable man" in one breath and to the reasonable belief of the particular defendant in another. I see an important distinction between those two positions.

The real problem with subsection (3) is that it brings into this difficult area of law the concept of the hypothetical "reasonable person". Amendments Nos. 4 and 5 ask us to consider who is the "reasonable person"? In some areas of the law the "reasonable person" is a mature man of 40, who is well educated and so on and likely to make the correct decision. But a "reasonable person" so far as a 16-year old boy or an 18-year old man is concerned, may well be someone of his own age. from his own background, who shares the same prejudices, beliefs and signals.

The problem with introducing this hypothetical "reasonable man" is how to determine who he is. What standard is a jury to apply? That is rather different from looking at the defendant in the dock and saying, "When that person tells us he had an honest belief that the girl consented, was that a reasonable belief?" I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick, when he said that he had never experienced a defendant succeeding before a jury with the defence, "I had an honest belief. It was unreasonable. I recognise it now. But at the time, it was an honest belief". In practice, and in my experience, juries would reject such an argument.

In subsection (3), the Government have chosen the concept of the "reasonable person". We, on these Benches, object to that. "Reasonable belief" is a matter that I shall address in our later amendments. But the subsection as it stands—again I agree with the noble and learned Lord. Lord Lloyd—is unworkable. I believe that it will not increase the conviction rate, but that in the minds of a confused jury it will lead to fewer convictions.

I apologise that I must leave at five o'clock in order to address a group of sixth-formers. I had not expected the first two amendments to take two hours. I promise to read carefully what is said in my absence, to return to the proceedings as soon as possible and not to repeat myself when I do.

Clause 1(3) sets an almost insurmountable hurdle. For example, a husband wakes his wife in the middle of the night with John Donne's line:
Dear love for nothing less than thee Would I have broke this happy dream",1074
and she says to him, "All right, I suppose so". That— in my mind at least—creates a reasonable doubt as to whether she consented. The man who proceeds in that circumstance should examine his conscience. I do not think he should be found guilty of rape.

To what does the second half of the clause apply? The subsection applies if,
A does not act in a way that a reasonable person would consider sufficient in all the circumstances to resolve such doubt".
There is no action that A can take to resolve that doubt. The only thing that might resolve it is B's body language. Body language, especially of this kind, is not repeatable in court. So, we have a test which simply cannot be satisfied: it is an unreasonable test.

I also support Amendment No. 6. It would disapply Section 78, which, even as clarified by Amendment No. 398—and it is clarified rather than altered—is entirely unacceptable drafting. Clause 78(1)(b) states that,
the defendant is to be taken not to have believed that the complainant consented unless the defendant proves that he did believe it".
How does one prove that one believes something? One may confess one's faith. One may do so in total sincerity, but by what objective test is anyone in the world ever going to know that one is totally sincere'? So far as I can understand, such knowledge, if it existed at all, would be divine and not human. The test is completely insurmountable and it is unreasonable to ask anyone to try to conduct it.

I am a little anxious about the treatment of sleep. Again I accept the general thinking behind the Bill; that having intercourse with someone who is asleep should in normal circumstances be regarded as an offence because consent cannot be given. However, there is one particular circumstance which to my knowledge has arisen in court and has become an issue, where the couple had had consensual intercourse and fallen asleep in bed side by side.

In the middle of the night the woman reached out and made a gesture of affection, which the man interpreted as a gesture of consent. But it was not. She woke in the night, too drunk to remember how she got there, and screamed rape; as one might if one woke in the middle of the night and found a strange man beside one. But, until the lady indicated that she did not consent, there was a rebuttable presumption that she did. If a man makes love to a woman and goes to bed with her and falls asleep with her, he is entitled to presume that she consents until she tells him otherwise, and no longer. So the treatment of sleep in cases where there has been consensual intercourse immediately beforehand cannot be the same as the treatment of sleep in other circumstances.

I have a good many more criticisms of Clause 78, but under the circumstances I hope the Committee will forgive me if I do not make them now.

The moving of the burden of proof from the prosecution to the defendant, which is what Clauses 1 and 78 do, is in my
1075
opinion totally indefensible. It is especially so in a situation where in the nature of the crime there are unlikely to be any witnesses for either side.

There are in this world some women who lead men on and then, at the last minute, say no. There is a rude, colloquial name for them, which I should not dream of using in your Lordships' House, but your Lordships all know what it is. Afterwards, they may cry rape. How is the defendant to defend himself, if he has to prove that he believed his intentions to be acceptable when the girl denies it? Who is the reasonable person in that instance?

I can sympathise with those who are concerned about low conviction rates, but do they want to increase them by convicting innocent people? I entirely support the views of the noble Earl, Lord Russell, about rape when the so-called victim was asleep.

There has been frequent reference to the low incidence of conviction. Perhaps I may offer some suggestions as to the causes. They are many and complex. Some of them are easier to understand than others.

My first example is the simplest in the world. Your Lordships may have heard the phrase, "If you pay peanuts, you expect monkeys". That is exactly what the prosecution did. The prosecution paid the Bar to prosecute considerably less than legal aid paid to defend. When it became apparent that as a result the experienced Bar refused Crown Prosecution Service briefs and only the young, inexperienced person came to be faced by an experienced opponent, the CPS realised that that had to be dealt with.

That was dealt with by the Treasury in the usual way—here are no prizes for the answer. The graduated fee carefully negotiated with the Lord Chancellor's Department for the defence was reduced by 10 per cent, so that that 10 per cent could be added to the fees paid by the Crown Prosecution Service. Thus, that reason for the high incidence of acquittals was dealt with.

The second reason is that no filter system is now operated by the Crown Prosecution Service. In practice, before corroboration was abolished, one needed to be able to show a good, arguable case. That is no longer the case. If the allegation is made, it is politically incorrect not to allow it to go to trial. So weak cases have been allowed to come to trial and, as a result, many of them have failed.

The third reason is that some complainants wrongly believed that, in order to establish rape, they must have struggled violently. So, in order to gild the lily, they told the jury that they had struggled violently. In due course, the defence produced underwear that showed that not a stitch had been disturbed and established that the complainant had been gilding the lily. As a result, understandably, they did not believe her.

The next and fourth reason— we all know all about this and nowadays frequently read about it in the newspapers—is that false allegations are made from time to time. There are a variety of reasons for that.

1076
The woman may have been rejected. It may be jealousy. She may have some psychological hang-up. Ultimately, she confesses to that and the case collapses. Your Lordships may remember that in A Passage to India the heroine had the false feeling that she had been raped by the Indian, but eventually had to admit that it was all an illusion.

The fifth reason is that there has been a radical change in social mores. In the university to which I went—and, no doubt, at other universities at the time—sex was referred to cheerfully as the best indoor sport. Now, it is so often a casual pastime Some of your Lordships may have come across the programme called "Three-minute Dating", which is a new method of ensuring that people meet quickly to go about whatever activities they want. Sleeping around is especially the result of drinking too much or taking drugs. In that situation, the jury does not believe that the traffic lights changed from green to red without an intermediate amber.

Sixthly, a small number of cases involve husbands and wives or cohabitees. In such cases, the jury know, because it is so often stressed, how very serious is a rape case in regard to the sentence that may be imposed—five or six years as a starting point. In some such cases—maybe very few—the jury think such a result entirely disproportionate to what happened.

Then, seventhly, there is the law of unintended consequences. Nowadays, a vulnerable complainant can give her evidence on video. She is never seen by the jury, yet the jury must weigh up her unseen evidence against the evidence of the accused. How can they in such a situation be sure that the defendant is guilty?

Finally, and most important of all, there is the burden of proof. I do not believe that the phrase "reasonable doubt" is any longer frequently used. The jury are told, following a decision made by Lord Chief Justice Goddard, that they must be "sure". Having to be sure is a very high burden. The jury can say among themselves, "This probably happened, but we have been told that that is not enough" or "It is very likely that the complainant is telling the truth, but that is not enough; we must be sure of the case".

Those are some examples of explanations for the low incidence. I agree with my noble and learned friend Lord Lloyd, and do not believe that there are cases where a man asserts a totally unreasonable— perhaps honest—belief that is accepted by a jury. That is particularly so now that the jury must be told in terms that they must take into account the whole of the circumstances and whether it appears to them to be reasonable for such conduct to have taken place. I hope that I have assisted to some extent on a subject that seems to be shrouded in mystery.

As I understand it, we are trying to improve, in particular in Clause 1, the legal definition of rape so that any existing loopholes are closed, and so those who commit the offence can be convicted. I am concerned by what I have heard from several noble Lords about the lawyers' approach as opposed to the Baronesses' or women's approach.

1077
Two powerful contributions were made by my noble friend Lady Gould and the noble Baroness, Lady Howarth.

That is the background. But we are producing the tools that people such as me—the lawyers—must try to use in the courts. We need clarity, simplicity, and, when dealing with one of the most serious criminal offences, a powerful and high-level test to be applied before people can be convicted. We need a guilty mind—mens rea. It is a cardinal principle of serious crime that the mind must go with the act. Yet this clause would remove that and, as the noble and learned Lord, Lord Lloyd, said, make negligent rape an offence, which it is not now. Therefore, we are proposing to take out a crucial safeguard for people accused of serious crime, greatly complicating the task of lawyers and judges in directing the jury, and, ultimately, that of the jury itself.

Time and again, after Bills have passed through this House and another place, I go to the Old Bailey and people ask me, "How on earth did you allow that to get through? How have you allowed them to muck things up again?" One of the areas that have been mucked up is the concept of the reasonable man, which has caused enormous difficulties in law, particularly in relation to provocation, and is not resolved.

Yet, while trying to simplify things, we are introducing in Clause 1 a double complication: not only will the jury have to be directed that they must try to decide what a reasonable person would think about the complainant's consent or lack of it, hut, if they find that there would be doubt in the mind of a reasonable person, whoever he may be, they must decide what a reasonable person would consider sufficient to remove the doubt. The ramifications—the hurdles and tests that the jury would have to apply—are complicated. The reasonable man is being introduced apparently to try to simplify the position. He comes with his partner in confusion, the shifting burden, which will arise later. The judge's task would be greatly complicated by what is presented.

Why is it being done? I must say, particularly in response to the noble Baronesses' earlier contributions, that it is being done for cosmetic reasons. It will not increase the conviction rate one jot. Like other noble Lords who practise at the Bar, I have never come across a rape case won on the basis of a mistaken but honest belief that there was consent. It happened in the case of Morgan; clearly it can happen, and the direction is given, but I have never heard anyone describe a case on that basis.

So what is the effect of what we are arguing about now and have been arguing about for so many minutes? We will produce something cosmetic for the women's pressure groups. We will produce complications that will lead in some cases to a wrongful conviction. The case will then proceed to the Court of Appeal, and, it is hoped, will be rectified. We will produce a better definition; it will be worse than before. I understand the Minster's difficulties. He is faced with pressure to do something and is looking hard for a way of doing it. The noble Baroness, Lady
1078
Noakes, made much the same point, saying that we should try the approach and see what happens. But every time we try to mess around with the law and disregard the legal views on the matter, I must go down to the Old Bailey and have people say to me, "This is a nonsense; how on earth can we work with these tools?"

I ask the Minister to look carefully again at the matter. Once the reasonable man comes in. we enter a whole area of difficulties that so far have not affected the rape definition. If there were a pay-off—the reward of the conviction of people who now wrongly escape conviction—that would be fine. But I cannot see it here. I would also like to hear the answers that the noble Baroness, Lady Noakes, sought about conviction rates. What we are about to do is both potentially dangerous and wrong.

Like the noble Baroness, Lady Mallalieu, on the issue of principle I agree entirely with the noble and learned Lord, Lord Lloyd of Berwick. I shall not weary the Committee by trying to repeat his cogent explanation of those principles. It is implicit in what the noble and learned Lord said that the statistical problem so recently highlighted by the noble Baroness, Lady Mallalieu, will not be changed by the provisions. However, I disagree—I shall explain why in a moment—with those who say that one cannot envisage cases in which manifest injustice could be perpetrated by what is proposed, particularly the third-party provisions in Clause 78.

I regret to tell noble Lords that I, too, speak as a legal practitioner who has occasionally gone far and wide into the regions of this country. Indeed, I have often had to argue these issues in the legendary Mold Crown Court, where juries consider matters in their own idiosyncratic way. In most rape cases where there is a defence, it is approached from three positions. First, did it happen at all? In many cases it is denied that sexual intercourse took place. Secondly, was it the accused who had sexual intercourse with the complainant? That is not such a problem these days because of the availability of DNA profiling. Thirdly, was there consent? I estimate that 97 or 98 per cent of rape cases are decided on issues of that kind. The statistics cover thousands of cases. The acquittal over a 10-year period of two or three people who do not have mens rea would not affect those statistics one iota. But there remains the potential for injustice. I suggest that it is the responsibility of this House, with its informed membership, to ensure that such injustice does not take place.

I refer to a practical issue, repeating a question that I asked at Second Reading. Probably because I did not make the question clear, the noble and learned Lord, Lord Falconer, did not answer it. I ask him to consider it afresh and to give us an informed answer. Several noble Lords have already raised the complexity of the tests set out in Clauses 1 and 78. At Second Reading, I asked—and the noble and learned Lord, Lord Lloyd of Berwick, repeated the question—whether the Judicial Studies Board had been consulted. Will the Minister tell the Committee whether the Judicial
1079
Studies Board has been consulted? It is an important question. Why? Because the Judicial Studies Board produces specimen directions that are used by every responsible judge in almost every case where the particular crime is charged.

The specimen directions are drawn up by two circuit judges. They are practical people with everyday experience of directing juries. Have those judges been asked, through the Judicial Studies Board, to produce specimen directions, so that legislators can consider whether the provisions are workable?

I can assist the noble Lord. I got in touch with the Judicial Studies Board on that point. I was told that the Judicial Studies Board was never asked to comment on legislation going through the House. The legislation is served up, and the board is then obliged to make the best that it can of it. It has no say in the policy of the legislation or its intelligibility; it must just make the best of a bad job.

Lord Carlile of Berriew

I am grateful to the noble and learned Lord. I do not suggest that the Judicial Studies Board should be a participant in the production of policy. That is not what I propose. I am suggesting that the Judicial Studies Board, particularly those who draw up specimen directions, should try to produce a template, so that the legislators—ourselves and those in another place—can decide whether the apparently impossibly complex provisions are workable. My belief is that they are not. They will make the already over-complex direction on self-defence look like simplicity itself.

While we are on the subject, I must respectfully correct my noble friend Lord Thomas of Gresford. In the direction on self-defence, there is not merely an objective test; there is an important subjective element. I gave the direction myself last week, sitting as a recorder. It goes something like this: "Members of the jury, if you think that the defendant may have done no more than what, in the heat of the moment, he thought was necessary, that is powerful evidence, you may think, that he acted in lawful self-defence". If that is not included in the direction, the defendant's conviction will be overturned in every case in the Court of Appeal.

My noble friend, in quoting from the book written by the noble Baroness, Lady Kennedy of The Shaws, referred to provocation. The provocation test is no longer an objective test; there is a high level of subjectivity in it. Amendments Nos. 4 and 5 in the next group, I think, reflect that element of subjectivity. There is no serious crime in which the serious element of a guilty mind—what the noble and learned Lord called the "golden thread"—has been abandoned. That would be a dramatic precedent.

My first question is whether anything has been done to address the complexity of what is proposed. I believe that it has not. What the noble and learned Lord, Lord Ackner, said bears that out.

In raising my second point of substance, I must declare an interest as vice-chairman of a small mental health charity. Those who suffer from mental illness,
1080
personality disorders and similar conditions are vulnerable. Care in the community is a wonderful thing for those who find themselves in protected circumstances, but it is also a dangerous thing for many. I shall give the example of a vulnerable, learning disabled adult who could easily find himself in the sort of situation that might lead to a wrongful conviction of rape. The Government must be able to address the issue, if they insist that their proposals must become law. Regrettably, it is the experience of those of us who enter the criminal courts regularly that we should never be surprised at the behaviour of the human being and that truth is stranger than fiction. We observe such things on a monthly—if not weekly—basis.

The sort of scenario that I will posit is far from exaggerated. A learning disabled adult may be used by a group of yobs as a sort of plaything, and they put him in a situation in which he—not they—is persuaded that the woman who is undoubtedly raped wants to be raped. He does as they bid him. What is his belief? His belief—in the real world of a very small number of learning disabled people—is that he is doing something that he is allowed to do, something that he has been encouraged to do and something that, in so far as he understands the concept, it is lawful to do and that he is honest in doing. Is a person in that situation to be convicted of rape and made subject to a potential sentence of life imprisonment? If so, it is serious discrimination against people who are learning disabled and could result in injustice to a small number of people. It will affect a tiny number of people, but, even if it happens only once in 10 years, that is once too often.

Another example, also taken from the field of mental illness, is related to the fact that those who suffer from mental illness are often well for a large amount of time and lead an apparently normal life. However, in some conditions, such people may be very occasionally subject to florid explosions of their mental illness. Such florid explosions of mental illness can lead to entirely bizarre beliefs, which may be permanent or temporary. Among those may be the belief that a woman who is in no realistic way consenting to sexual intercourse is, in fact, doing so. Should such a person be convicted of rape, when he has no guilty mind and what has occurred is demonstrably the result of an illness that he had at the time that he committed the act?

In this country, where the golden thread that has been referred to has survived for a long time, we should not allow political correctness to destroy the civilised assumptions that we have made and sustained over hundreds of years. That is what is proposed. When, on this group or a later group, the Minister responds to the debate, he must deal. specifically with the way in which the Government will address the problem of mentally ill people who may find themselves—albeit very occasionally—in the position that I described.

I agree with the right reverend Prelate that the essence of any sexual relationship, even if it is what is unattractively called a "one-night stand", is that there should be consent. There should be a contract, as in marriage. However, that does not mean that it is right
1081
to criminalise every situation just because the person on the Clapham omnibus would not regard it as consensual. We tread a dangerous path, if we go down that route.

Lord Morris of Aberavon

I shall ask two questions. As a member of the criminal Bar, I am in sympathy with the Government's aim of reducing what is regarded as an unacceptable rate of acquittals. The figures for cases that do not involve stranger rapes are intolerably high.

The problem is how to tackle it. I am concerned whether this is the right way. My first question is: why do we have such a high rate of acquittals? The noble and learned Lord, Lord Ackner, touched on many reasons, but on one in particular. I seek an answer to this question. Is the test for launching a prosecution the same as for all other offences? There are two tests. The first test is that of public interest. The second is whether there is a reasonable prospect of conviction.

Certainly, if the figures mean anything, a reasonable prospect of conviction does not manifest satisfactory completion of that test. Will the Minister tell us whether there is an element of political correctness once a complaint has been launched or is rape treated these days in exactly the same way as every other offence? If it is treated in exactly the same way, someone who takes the decision to prosecute takes a view different from what the eventual figures manifest as regards a reasonable prospect of conviction. They are wholly different, as we all know.

The second question has also been touched on by noble Lords. What is the expected change in the conviction rate if we pass this part of the Bill? In all the Home Office studies, there must have been a great deal of thought on this issue. Otherwise, I should hope that the Government would not have embarked on this at all. Members of the Committee need, and deserve, a clear indication. If not, our task would not have been worthwhile and it could lead to the conviction of the innocent. That is the last thing that we need.

Finally, the noble and learned Lord, Lord Ackner, has assisted the noble Lord, Lord Carlile, as regards the role of the Judicial Studies Board. We are grateful to him for having explored that issue and assisting the Committee. Having spent some time directing juries on many kinds of offences, it would be helpful if we had a specimen direction, as asked for by the noble Lord, Lord Carlile, and if it was made available before the next stage.

That is all I wish to put before Members of the Committee. The test of a reasonable person has always troubled the courts in so many spheres. The noble Lord, Lord Carlile, again mentioned the involvement of a person who certainly is not a reasonable person in that context; he is a very unreasonable person. Therefore, he might be inclined to take a different view. Indeed, on this particular test, the jury would take a wholly different view as regards his guilt; whereas, in fact, he may not, by ordinary standards of
1082
people, given his vulnerability and his deficiencies, be likely to be convicted of an intention to commit that offence at all.

I apologise to Members of the Committee that I was unable to take part at Second Reading. That is one reason why I wanted to listen carefully to this argument. I declare an interest as chairman of Justice, the all-party law reform group. The members of Justice are—as those of your Lordships who have received copies of our briefings will know—divided on the principles underlying this clause. That I fully understand. I readily recognise, as my noble friend Lady Noakes said, that there is a strong body of opinion that supports change. I recognise that this is an issue of real sensitivity. Undoubtedly, there are the genuine feelings and reactions of many people—not just women—that the concerns of women are taken too lightly by men and that juries tend to lean too readily against conviction.

Against that must be set—I now express a personal view—the sensitivity, which should not be scouted down because it is expressed largely by lawyers, of respect for the principles of the criminal law. Those have been fully set out by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Mallalieu. I do not seek to repeat them. However, we should be very careful before we depart, in the case of a serious offence, from the underlying principle that guilty mind or intent is at the heart of criminal law.

If there were more time, there would be some cogent passages to that effect from the case of Morgan that I should wish to cite. But I shall confine myself to drawing attention to one statement in the Law Commission consultation paper in which it stressed:
Mere negligence, in the sense of failing to realise what a reasonable man would have realised, could not possibly suffice to found criminal liability".
Yet it is entirely that approach which the Government now adopt. They do it in a way which seems particularly concerning. As I read Clause 1(3), it creates a completely objective test that must be answered in two separate parts. The first part is whether a reasonable person would, in all circumstances, doubt that there was consent. The second part is whether a reasonable person would consider the steps taken by the accused were sufficient to resolve the doubt. Therefore, there is a double test of objectivity included.

Will the Minister indicate whether he finds such a test present in any other aspect, even less serious, of the criminal law; or, indeed, whether he can think of an analogy within civil law? The concept of the doubt test of reasonableness also seems to emphasise the point being made eloquently by those more experienced in this field than myself, including the noble Lord, Lord Carlile, of the difficulty of directing a jury in this area.

There are others, particularly on the Cross Benches, far more qualified than I to indicate whether this would be a direction that would be practical to formulate and for a jury to comprehend. They, too,
1083
will potentially have views on whether the attempt to formulate such a direction might confuse the jury or lose its sympathy to such an extent that the level of convictions would drop. These are reasonable fears. It has been helpful that the position of the Judicial Studies Board has been clarified. But I should like to ask the Minister, what is the procedure on these occasions for consulting the judiciary? For example, was the Lord Chief Justice, on behalf of the body of judges, consulted before the publication of the Bill in order to have comment on the benefits of a change in the law and what I would call the workability? Were the judges asked whether they would welcome a situation in which a special verdict might be needed so as to decide what was the gravity of the offence in order to sentence the accused?

At present, I feel diffident in departing from the test put forward in Morgan. In one sense, I wish that it could have been debated in parallel with Amendment No. 8 tabled by the noble Lord, Lord Thomas, which suggests some change in the law, which might, arguably, be more reasonable. That, as I understand it, was the proposal broadly put forward by the sexual offences review and which I think has been adopted in Canada. But if the choice came between the present clause and leaving the test in Morgan, I would have no hesitation that there should be no change to the law. Ultimately, I should like to reserve my thoughts and views on whether it is possible to go along the route put forward by the noble Lord, Lord Thomas, in recognition that there is an issue on which people on the other side of the argument from the existing law feel strongly.

I stand as a social worker, a woman, against the lawyers. I am not sure where that puts me, but it does not put me on an emotional plane making an emotional argument. I want to make a reasoned argument on behalf of women. That puts me in difficulty, because, as I said previously, I have been aware of many women and young people who have not won their case because of difficulties and technicalities within the law once the Crown Prosecution Service has tried to take the case forward. Therefore, I am keen that whatever law we ultimately pass wins their case. I listened with great care to the noble and learned Lord, Lord Lloyd, who has great experience.

As I have been put partly on the other side of the fence, as it were, I want to address a couple of issues. First, I want to take out of the debate the phrase "political correctness". It is a great pity that in discussing these issues and the rights of women, we suggest that they may be concerned with, in the strange phrase, "political correctness", which these days has a slightly derogatory feel about it. That is extraordinarily hurtful to the kind of victims I spend my life with: they want nothing to do with political correctness, they want their rights to be heard and a response made to them.

Secondly, as I said to the Minister in a preliminary meeting I was able to attend, I do not believe that the Bill can attend to many of the difficulties we face. Had
1084
we managed to introduce the matrimonial causes legislation, which contained a great deal about mediation, we might have been able to deal with some of the family situations now going to court—indeed, they might never have gone to court had we had experienced people able to deal with them.

However, I remind the noble Lord, Lord Thomas, that the same figures could be held for murder and assault as for rape in domestic circumstances. Therefore, we should not treat those situations lightly—

I do not treat those situations lightly at all. I consider that in the marital situation there is a great deal of violence. I have been practising for 40 years—both prosecuting and defending—and I know entirely the whole scene. I therefore resent the suggestion that I am taking it lightly.

I apologise if I gave that impression. I was simply trying to illustrate that people face a wide range of difficulties and that this situation fits into the same category. I was simply using that positively rather than negatively. I hope that the noble Lord will accept my apology if I did not say the right thing.

My real intention in rising to speak is to say that it would be a great pity if we did not end up with some change in the law. There should be some change which makes it easier for these cases to be properly tried and heard. Women should be sure that their position will be made clear and the defendant will also be heard. I have also counselled men, so I do not spend my time dealing only with women. In these situations, it is often difficult to sort out the issues and therefore it would be most helpful if we could look at the matter in a way that would take us forward. I have not yet looked at the amendment tabled by the noble Lord, Lord Thomas, but I should be sad if we lost the whole argument and all the proposed changes and if nothing happened for these women.

The debate has been conducted largely among professionals and it has been most interesting and informative from my point of view. However I want to remind the Government that, in their laudable intent to assist women who are raped and whose assailant is not convicted, they may not be meeting what the public want in the way they want it. In my experience, which is mostly local, there is a world of difference between the reaction of ordinary members of the public to rape trials and rape accusations and the reaction of the groups who exist to stand up and speak for women.

I find that most women are extremely suspicious of what women are saying in rape cases, as are many men. They are naturally suspicious, a situation which I met in early stages on the Bench but mostly by observing my own locality. I do not believe that the Government
1085
will achieve much with juries unless they can overcome their difficulties. They certainly will not overcome them by extending the offence of rape.

Achieving more convictions is about enabling juries to understand when someone has committed rape. The lawyers who have spoken—and we have among them the greatest in the land—are explaining how they do that. But ultimately it will be enabling the juries to understand. Like the noble Baroness, Lady Mallalieu, I am sorry that a distinction has been made between the lawyers versus the ladies. I am not one of the ladies and I am not one of the lawyers, but I am an observer of the public. I believe that the Government may be barking up the wrong tree in trying to find a way of helping juries in court to understand whether someone has been raped. I suggest that they should look carefully at whether they have got the right answer and whether subsection (3) will help juries. As a nonprofessional, I cannot understand how it will. I believe that the Government may have got the wrong political answer to an important legal question.

It would be extremely useful if the noble Baroness, Lady Howarth of Breckland, could indicate to the Committee the types of technical problems, to which she referred, experienced by those she has counselled. The perception of those technical barriers may help us to decide whether what is being proposed will meet that type of objection.

As an open and blank mind which has listened with fascination, I have one question to ask. When someone says that he wants to achieve more convictions, does that mean that the courts have so far been wrong in acquitting defendants? If the convictions were right —7 per cent of cases were successful and consequentially 93 per cent were failures—does that mean that the 93 per cent of defendants were unlawfully or wrongly acquitted? To say that we need more convictions per se is not a judicious way of proceeding.

I want to intervene only briefly. I spoke on Second Reading as a non-lawyer, but I have strong views based on a case I followed in detail some years ago. My noble and learned friend Lord Morris of Aberavon asked a question which is particularly pertinent. It was: is it the view of the Government that there will be an increase in the number of convictions arising out of the principles enshrined in the legislation? I understand that that is what has motivated those who are behind the legislation in bringing it forward. The conversations I have had with people in the legal profession lead me to believe that the legislation will not increase the rate of convictions; it will decrease it.

This morning I had an interesting conversation with Jonathan Davies, a barrister who may well be known to some noble Lords. I should like to read an excerpt of an article that he wrote on 14th April last year in the
1086Mail on Sunday which I regard as interesting. It raises issues that the Committee should address when dealing with legislation:
One spring afternoon two years ago, I cross examined a young woman in a date-rape trial. As I did so it became clear to me that she knew her complaint would not succeed, and she knew I knew it … It was a deeply uncomfortable situation, one which barristers across the country have had to become accustomed to in recent years. For a significant number of 'date rape' cases, where a woman is sexually assaulted by a friend or colleague, are being brought into courtrooms despite the fact that they have no hope of success … This is a pattern I have become all too familiar with in my lengthy career as a criminal barrister and Crown Court recorder. All 16 rape cases I defended recently at a North London court resulted in not guilty verdicts. None of them should ever have gone to court. So why is it happening?Until the Criminal Justice Act in 1994, juries were warned by a judge of the 'danger' in convicting in rape cases where there was no supporting evidence. This rule was considered objectionable and demeaning to women so the law was changed. However, today we seem to be faced with a situation where a case can go to court with no supporting evidence of any sort but the woman's complaint. And as rape normally carries a sentence of at least four or five years, juries are reluctant to convict a man unless they can find something tangible that helps them".
He lists a series of circumstances in which that might be the case, and then goes on to say:
I have seen all these[the circumstances to which he referred] and used them, in favour of women, when I have been prosecuting. But all too often, when I open the brief there is nothing. So who is responsible for bringing these cases to court? The blame lies with the police and the Crown Prosecution Service (CPS), who are currently too afraid of the rape lobby to throw out an insubstantial case. The rape charities and campaigners have tremendous power. People and parliaments will always listen to them and no one is willing to contradict their views because rape is such a terrible crime … So what can a woman do?
He sets out once more the relevant circumstances.

This criminal barrister believes that the Bill we are currently dealing with will not sort out the problems he faces in court when he is prosecuting. He believes that it simply will not work and that it may well lead to further acquittals where an acquittal might not be the right way to proceed. His view is that the problem rests with juries. In cases where it is the word of one person against another, more often than not—indeed, almost invariably—juries will never convict. Why are we bringing "word against word" cases to court? Why are we spending vast amounts of public money on bringing such cases to court when what they need is the critical additional component of corroborative evidence?

All I can say to Ministers is this: please understand that if the intention is to increase convictions, the Bill may fail in exactly the same way as the change of law on corroboration did in 1996, in so far as it did not work in the way that Ministers intended. I have been told that when it was no longer necessary to deal with the issue of corroboration, juries compensated by having in their minds a need to balance the consideration where otherwise it would act against the interests of the defendant.

Let us not once again introduce a change in law which has the reverse effect from that intended.

As a Scot, perhaps I may be allowed to join in the debate. I am emboldened to do so having heard my friend the noble and learned Lord, Lord Mackay of Clashfern, make a point. First, however, I wish to support a point made by a number of noble Lords, and most recently by the noble Baroness, Lady Carnegy of Lour.

I have almost 50 years of experience in the criminal courts in Scotland, where we do not have a similar statutory provision. Around 19 of those years were spent on the Bench, directing or charging juries in criminal trials, many of those being rape trials. It is the duty of the trial judge to try to ensure that the jury understands the legal context in which the case has to be decided. If I had this provision before me, I would feel it necessary to explain to the jury all of the following points. In regard to Clause 1(1)(a), I would feel it necessary to explain what is meant by "intentionally". I would feel it necessary to explain what is meant by "penetration", which noble Lords will see is defined in Clause 81(2) as including "withdrawal", and which I would also feel it necessary to explain.

I would feel it necessary to define what is meant by "the vagina", which is defined in another subsection as "including the vulva". I would feel it necessary to define what is meant by "consent". I would feel it necessary to say something about the meaning of "belief-. I would think it necessary to say something about what is meant by the concept of "giving no thought". I would feel it necessary to instruct the jury about the meaning of the words in Clause 1(2),
whether B consents, or otherwise".
I would find it necessary to explain the meaning of "a reasonable person". I would find it necessary to say a word or two about "doubt". I would find it necessary to explain the word "sufficient.' in Clause 1(3)(b), in particular in reference to later provisions in Clause 78, about what is and is not meant by "sufficient"; and I would find it necessary to explain the meaning of "reasonable doubt".

The number of errors that I could make in the course of attempting that exercise is legion, while the number of appeals that would arise out of my mistakes would be equally legion. I am concerned that, ultimately, we would put an enormous burden on to the Appeal Court without clarifying the issues in the minds either of jurors or of the general public. Thus I fear that this provision will fail in its intended effect.

Before the noble and learned Lord sits down, I should like to ask him a question. He indicated that he has charged many juries on rape cases north of the Border. I wonder whet her his experience is similar to mine: namely, that on very infrequent occasions have I ever had to deal with the issue of "honest belief".

The short answer to that question is that I have never, in my entire experience as a
1088
prosecutor for over 12 years, as a defence counsel for many years and as a judge for some 19 years, encountered that defence.

I wish to make two brief points. First, I want to encourage my noble friend Lady Noakes not to disparage professional views. She has, as have I, spent most of her life working as an accountant and thus putting great weight on what accountants have to say. I have argued for a long time over financial affairs, but ultimately you must give in. For the most part, when accountants say that something is impracticable, they are right. Also, it can be dangerous to go against their advice.

Secondly, I do not think that it is a good idea to introduce the concept of "reasonable" into longstanding human relationships. Many of the cases we are considering here concern incidents that take place within the context of relationships that have been running for a good long time. Human relationships are varied and extremely strange when looked at by an outsider. Trying to view other people's relationships as something inherently reasonable is, I think, mistaken. People have their own ways of living and working things out, in particular within close relationships. Surely it is better to concentrate on the facts of the case rather than to introduce a strange third party, as if there was an objective view of human relationships.

I agree with the noble Viscount, Lord Bledisloe, that my earlier intervention was confusing and confused. We have had an extremely helpful debate on the principle. I congratulate the noble Earl, Lord Onslow, for spotting that it was worthwhile to debate the principle of whether or not one should import an objective element into the defence of consent. The issue arises not only in cases of rape but in cases of sexual assault and penetration.

The issue we are debating can be summarised as follows. No crime currently is committed where a person is forced against her will to have sexual intercourse with a person who can convince a court that he honestly interpreted whatever happened as consent to sex however unreasonable such a belief might be. Should that remain the law, or are there benefits in changing the law?

At this stage, I shall not debate the precise detail of how to introduce an objective element; the question is whether or not an objective element should be introduced. We believe that it should be, for two reasons. First, it is a more just approach; secondly, it is likely to produce more convictions. However, I am not able to say what the increased number would be.

I thoroughly endorse what the noble Baroness, Lady Howarth, said—namely, that this is not a dispute between the lawyers on the one hand and the Baronesses on the other. This should be an earnest endeavour by all of us to find the right answer. It is not only lawyers in this country who are fairly divided in their views. For example, the Criminal Bar
1089
Association does not oppose the introduction of an objective element and many other common law and other jurisdictions throughout the world have introduced an objective element in relation to the law of rape and other serious sexual offences. So let us be under no illusion that it is only the lawyers who wish to keep the law as it stands; they are themselves divided.

Equally, we should not think that, because the wholly admirable Mrs Justice Heilbron in the 1970s took the view that there should not be a change, the position has stood still since then. We need to look at the question afresh and come to a reasonable conclusion.

What are the arguments for introducing an objective element? The Law Commission, when referring to the purely subjective rule, stated:
we think it would be remarkable if the Morgan rule
which is the purely subjective rule—
did not sometimes have the effect of encouraging a jury to accept a bogus defence".
So objective analysis suggests that if one continues with the Morgan defence it will lead to acquittals where there should not be acquittals.

What does justice suggest is the right answer? The mistaken belief will often arise in a situation where it is easy to seek consent and the cost to the victim of the forced sexual activity is very high. It is not unfair to ask any person to take care to ensure that his partner is consenting and for him to be at risk of a prosecution if he does not. It easy to raise the defence of mistaken belief in consent but very hard for the prosecution to disprove it.

There is no justice in a situation where a person who has been raped, or subjected to other forced sexual activity, sees an assailant go free because of a belief that society as a whole would have found unreasonable or completely unreasonable or totally unreasonable. In considering where justice lies, it is important to consider not only the interests of the defendant but the interests of the victim. In circumstances where the defendant has behaved wholly unreasonably in believing that there is consent and could have taken steps to put the position beyond doubt, where should the risk lie? Should it lie with the victim who has, through her own experience, been raped in the sense that she has sexual intercourse forced upon her without her consent; or should it lie with the defendant who, although extraordinarily unreasonably, honestly believed that she consented? The defendant would be acquitted, rightly, under the current law—but, we would say, wrongly as a matter of justice—whereas the victim will suffer from the humiliation of being raped and not receiving justice.

It is a difficult balance. It should not be determined by political correctness but by something that reflects people's understanding of what is or is not just. I am struck by the fact that the noble and learned Lord, Lord Lloyd of Berwick, the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Mallalieu, all say that where the belief in consent is wholly unreasonable the jury will not acquit. If noble Lords
1090
believe that, surely the right course for the Committee is to ensure that, with simplicity, that approach is reflected in the law.

The noble Lord, Thomas of Gresford, believes that that is right; the noble Lord, Lord Alexander of Weedon, believes that that is right. They question whether the method by which we seek to achieve it will deliver that result, but in terms of increasing legitimate convictions—by which I mean defendants are convicted because they have committed the wrong—and in relation to delivering justice—by which I mean ensuring that rape victims feel that the system understands their predicament and produces a just result—the change to introduce an objective element is the right approach.

My noble friend Lord Campbell-Savours and the noble and learned Lord, Lord Morris of Aberavon, legitimately asked why so many cases are failing. Let me be clear about the statistics. Seven per cent of reported rapes end in a conviction; many cases do not lead to a charge being brought or continued with by the Crown Prosecution Service; the rate of conviction in respect of charges pursued and brought to court is about 45 per cent. It is important to be clear about the figures. The Crown Prosecution Service is obliged to address such cases in the way it addresses every other case—that is, there must be more than a 50 per cent chance of success and it must be in the public interest for the case to be brought. There is no difference in the approach to these issues from the approach to any other issues.

As to the approach of the Judicial Studies Board— which I believe to be correct; I make no complaint—it will not produce standard directions until it sees the final form of the Bill; that is, when it becomes an Act of Parliament. The senior judiciary responded to Setting the Boundaries shortly before the Bill was introduced. I have had conversations with the senior judiciary about the detail of the provisions subsequent to the publication of the Bill.

There is an issue both in relation to the consideration given to whether or not a charge should be brought and in relation to what happens when the case gets to trial. At both stages the law needs to reflect what we would regard as a sensible position. As to whether the conviction rate is too high or too low, I believe that 45 per cent is too low.

Lord Carlile of Berriew

Can the Minister confirm that he means that nobody has been asked to produce a specimen direction, despite requests being made on Second Reading that this should be done, and therefore nobody has tested whether such a specimen direction would have the sort of technical problems of which the noble Baroness, Lady Howarth, rightly complains?

The Judicial Studies Board has not; other people have been asked, including the noble Lord, Lord Thomas of Gresford, and counsel on behalf of the Government. We need to see what the Bill looks like later on. I think that after Committee is the time to produce a specimen direction. The amendments that the Government have tabled to Clause 78 will be incorporated in the Bill, if the Committee is minded to pass them, and we can see how complex this is.

I am much obliged to the Minister for giving way. He was to make efforts to produce a specimen direction before Report. Does that ignore the fundamental objection, if I can put it this way, to the reasonable man? It seems totally to ignore the overall objection to the concept of a reasonable man being imported as a substitute for actual intent.

While the Minister is being interrupted, may I respond to something? I was so thrown by inappropriately accusing the noble Lord, Lord Thomas, of something I did not intend that I did not follow through the point that was picked up. The issue for many women is that they never get to court. There is a real question about the level of assessment carried out by the Crown Prosecution Service and the investigation. One of my colleagues previously talked about the follow-through of these cases from the incident to the investigation, followed by the weighing of the evidence. Contrary to what is sometimes said in this Chamber, these cases are not taken forward because the women, it is thought, would not be believed.

Very much so. Listening to the debate, the question is whether there should be an objective element. When we weigh up the pain caused to the victim against what the defendant has to do, the balance tends to favour the victim rather than the defendant. Can we ask a jury whether the prosecution has proved beyond a reasonable doubt that the way in which the defendant came to an honest belief was totally unreasonable? Precisely how that would be phrased must be discussed when we reach the next group of amendments. Is that a difficult question to pose? I honestly believe that it is not. Is it a difficult question for juries to understand? We would have thought that juries were perfectly capable of understanding that.

The Minister falls prey to a common error in constantly referring to victims. The whole point of a trial for rape is to determine whether somebody is a victim. He has used that word a dozen times in the last dozen minutes. That is a measure of just how unsatisfactory the Government's position is.

No, because I was starting these arguments not from the perspective of the lawyer, with the greatest of respect, but from where there is a rape. What brings justice to a case where
1092
there is a victim? We must look at it from the point of view of the defendant, who might be wrongly accused, and from that of the victim who has been raped only to find that there has been an acquittal. In constructing the law, one must from time to time look at the wider perspective than simply the problem in relation to the individual defendant.

With the greatest respect, that is an untenable proposition. One is perfectly at liberty to look at the wider perspective, of course, and for this debate to be determined by lawyers' talk is inadequate. None the less, for the Minister to say that a complaint brought by an indignant woman enables or entitles him to refer to her as a victim before there has been a trial and an outcome is quite wrong.

Again, with the greatest respect to the noble Lord, I do not think he understands my point. Rapes occur. We need the criminal law, in part, to deal with them. What is a fair way of ensuring that the court does justice to the defendant as well as the victim? A balance has to be struck. If the law is constructed in such a way, as the noble Baroness, Lady Howarth, says, that the CPS, quite legitimately under the current law, is unwilling to allow a case to go before a jury, or if, when it does, there are unreasonable barriers to the truth coining out, there is something wrong with the law, not because it leads to unfair convictions of defendants but because victims—real victims, by which I mean people who have been raped—find that, as the Law Commission said, bogus defences can succeed. I believe that we should look at the way the law works and consider what can improve that without leading to an undue risk of defendants being wrongfully convicted. The approach we are adopting has been followed by other jurisdictions; we believe it is fairer, without prejudicing the possibility of a defendant suffering a wrongful conviction.

I apologise for intervening again, and shall try to restrain myself from doing so on a further occasion. The Minister really cannot get away with constantly using the phrase "introducing an objective element" as though an objective element were not already there. We have had an objective element since the Sexual Offences (Amendment) Act 2000. The Minister should be justifying the complete removal of a subjective element. I invite him to address the serious point that I attempted to make about people suffering from mental illness and mental disability who are likely to be the very small number of people to find themselves convicted of an extremely serious offence as a result of these proposals.

On the existence of an objective element, the jury can have regard to, and should be directed to have regard to, the reasonableness or otherwise of the explanation offered as to why the defendant believed that the victim consented. But even if that belief is totally
1093
unreasonable, the jury are entitled to say that because it was honest—and that is the only question on belief in consent—not only can they acquit, they must acquit. A totally unreasonable belief, if honestly held, currently leads to an acquittal. That is the current law.

Does the Minister not weigh in the balance and take into account the collective experience of the people who have spoken in this debate, all of whom say that they do not know of a case in which this unreasonable but honest belief defence has succeeded?

Of course I take into account the unbelievable wealth of experience in this House, but there are two views among lawyers as well—lawyers who are just as experienced as Members of this House with their collective wisdom in relation to the trial of serious sexual cases.

Can the Minister help a blank mind? Do he or his department know of any cases in which this defence has succeeded? All the other people here say such cases do not exist. If he has evidence that he is curing an illness that exists, can we have it?

The difficulty we all have, as noble Lords will be the first to acknowledge, is that we are speculating. Everybody is in the same position. Quite rightly, we are not allowed to ask juries why they acquitted somebody. It is not thought to be in the interests of the administration of justice, and I do not disagree with that. Everyone in the Chamber is speculating why juries acquit. I agree with the noble Lord. Lord Thomas of Gresford, that the views of people with great experience, such as him, must be taken extremely seriously.

I thank the noble and learned Lord for giving way. I say with the greatest respect that he, too, is speculating. One of the questions I put to him concerned what his department estimated to be the impact of the change in the law on conviction rates in particular or, to put that more accurately, whether or not it would result in more convictions of people who should be convicted of rape and not wrongful convictions. I have not heard an answer to that. I heard the noble and learned Lord say that he expected conviction rates to go up but he could not say by how much. It seems to me that we need carefully reasoned analysis of what existing cases would result in a different outcome if this change in the law were implemented. If we cannot establish that, we have to consider whether or not it is safe to proceed with a change in the law.

I interrupt further on the same point to enable the noble and learned Lord to deal with my point as well. I wonder whether the noble and learned Lord can help us. He says that we are speculating—as, indeed, we all accept that we are— about the reasons why a jury comes to a verdict of this
1094
kind. But, as I understand what Members of the Committee have said and certainly in my experience, I have never heard advanced the defence that we are discussing. If the jury were to come to such a view based upon it, it would be fanciful. I have never heard advanced a defence on the mistaken belief that we are discussing. I am not aware of any others who have heard that.

It was advanced in the case of Morgan. If one speaks to lawyers, one understands that it is a combination of two elements. Normally the defence would be, "I believe that she consented. She did consent".

Indeed he was. As I say, the defence would comprise the two elements, "The victim consented. I believe that she consented". That is how the defence would normally be presented. I am gratified to see that the noble Lord, Lord Carlile, nods to indicate that that is how the defence is normally presented. Such a defence normally has two limbs.

I put our case for a change in the law on the basis that it will increase the number of rightful convictions. I am not in a position to indicate what the percentage or the number would be, nor I suspect would anyone be in that position. Further, I put our case on the basis that it is a more just approach to the question of sexual violence, rape, penetration and so on, against women. That is how I put my case. I have the support not just of those involved in—

As a non-lawyer I hesitate to ask a question at this stage but I have listened to all of the debate except the first few minutes. I thought that the noble and learned Lord was going to move on to the second part of an argument, but I do not think that he is. That is why I ask this question. Again and again and again he advanced a case for having an objective test. But having listened to the debate today I formed the conviction, on the basis of the wealth of evidence that is being produced by experts, that the particular definitions in the Bill will be totally unworkable. Is the noble and learned Lord now going on to a second part of his defence, which is, "The Bill, as I have drafted it, stands and I defend it", or is he saying only that there must be an objective test? The noble and learned Lord seems to have produced an objective test that is almost universally condemned.

If the noble Lord had heard the beginning of the debate, he would be aware that we decided to debate the principle of the matter. Given that various amendments seek to change the test in various ways, we can, in debating those amendments determine whether or not the way in which the Government devised the test is the best way to devise it for those who support an objective test.

I turn to the important point raised by the noble Lord, Lord Carlile. He describes cases which I accept could occur. However one constructs the test, the test
1095
must be capable of dealing with the kind of situation which the noble Lord identifies; namely, looking at all the circumstances which might well, particularly in the kind of circumstances to which the noble Lord referred, include the attributes of a particular defendant. In looking at the circumstances a reasonable person must have regard to some of the attributes of the defendant. As I understood it, the noble Lord described someone suffering from severe mental impairment. That would be a factor which the jury could take into account. It would not always constitute a defence, but so long as the jury is able to ask itself, "How would a reasonable man think that particular person in those circumstances should have behaved?" the objective element is brought in.

Lord Carlile of Berriew

I said that I would not intervene again but I do so for the express purpose of expressing my gratitude to the Minister for the very important concession that he has just made. Can we take it, therefore, that the Government will in due course, of their own motion, introduce amendments which will make it clear that what the Minister has just said is in reality the law?

We do not think that it is necessary to do that. The next amendment concerns whether a defendant acted reasonably or acted as a reasonable man thinks a person should act. No doubt some lawyers would say that the majority decision in Morgan was right whereas other lawyers would say that the minority decision was right. We believe that the right approach is to introduce the objective element, to focus the jury on what circumstances confronted the defendant and for the jury to ask itself whether what the defendant did was reasonable in all the circumstances.

All the circumstances could be taken into account. It is for the judge and the jury together to work out the extent to which they should take into account the particular attributes of the defendant. I do not think that is difficult. I do not think that juries will have any difficulty with that. I believe that the test is correct in terms of the law, although no doubt we shall now have an interesting debate on that. I believe that it is possible to ask the jury the question, "Did the defendant act reasonably in all the circumstances"? For those reasons we believe that an objective element is sensible, just and will lead to a greater number of convictions. Therefore, I invite the noble Lord to withdraw the amendment.

At an earlier stage of his reply the noble and learned Lord referred to the Heilbron report which confirmed the law as stated in Morgan. The noble and learned Lord then said rather dismissively that that was a long time ago and things might have changed. But how does he deal with the fact that the Law Commission, which reported only in
1096
February 2000, came down against Clause 1(3)? How does the noble and learned Lord deal with the question that the Government's own review came down against Clause 1(3)? I gave the references in the course of my speech but I should be very happy to give them again. The noble and learned Lord has nothing to support his argument.

We are grateful for the work that the Law Commission has done but the issue we are discussing goes beyond simply a question of law reform. There is an issue here that a wider community than simply the lawyers must decide.

The members of the review were divided as to whether or not an objective test should be introduced. Some said that it should; some said that it should not. Some were attracted to the Canadian model which includes an objective element.

I read again the relevant sentence:
Accordingly we recommend that the defence of honest belief should be expressed in terms of free agreement and be subject to limitations as to its use. This does not impose an external and objective requirement of reasonableness on the defendant".

I quote from the consultation paper:
The Steering Group was very attracted to the Canadian solution to this very difficult problem. In Canada the law retains an honest but mistaken belief defence but fetters when it can be used in a way that ties in with the definition of consent. The intention was to introduce an 'air of reality' … The Canadian Criminal Code states …the accused did not take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting".
So the steering group recommends the Canadlian model, which is similar to the model that we have adopted.

It allows a person to be guilty of rape where he believes that there was consent when there was not, and that belief is unreasonable, just as the current law permits someone to be acquitted of rape where he mistakenly believes in consent, no matter how unreasonably.

I wonder whether the Minister has finally sat down. I listened to him with great care, and I believe that he has done more damage to his own case than all the rest of us put together.

I was fascinated by the statistics that he quoted. He said that 45 per cent of rape cases that came to court resulted in conviction but only 7 per cent of reported rapes resulted in conviction. Surely, we need not to increase the 45 per cent by changing the law, but to
1097
address the 7 per cent. We need to address the extreme difficulty of getting women to bring rape cases to court.

I have some personal knowledge of this matter. In the course of an academic career, three pupils reported to me the experience of being raped. In only one of those three cases did I persuade the person to go to court. An uncomfortable feeling lingers in the back of my mind that the one I persuaded to go to court was the one to whom I did most harm. The effect of the rape on those three people was very different. It had nothing to do with the severity of the offence and everything to do with their own character. One of them reminded me of nothing so much as a hen shaking her feathers to straighten them after a cock had been at her. One of them has not recovered in 10 years. The one in the middle went to court, and I believe that she had cause to regret it.

In these cases, it is usually the detail of the cross-examination that causes the problem. A senior journalist, who was formerly a struggling barrister, told me a story about a time when he was one of a group of people defending in a gang-rape case. He said that he did what he thought was necessary for the case, going through his cross-examination in excruciating and practical detail. The next person, who defended the next one of the gang accused, is now an extremely prominent lawyer-politician. He began his cross-examination with the words, "I am sorry that you have had to go through such an extremely uncomfortable experience, but I am sure you will understand that justice must be done. Before we begin, look carefully at the accused. Are you certain that he is one of those who attacked you?" She looked carefully at him and said, "No".

Here we have the root of the mischief. The actual process of the trial is for many women too unpleasant to go through. It is almost as bad, and in some cases quite as bad, as being raped again. It is difficult to see what needs to be done about that, but we should address that question and not simply change the law.

When we debated the Youth Justice and Criminal Evidence Bill, we were on the right lines. The directions in that Act could be interpreted in a slightly more restrictive way than they are at present. I used to be against the introduction of any previous sexual history, but I was persuaded that I was mistaken by the noble Baroness, Lady Kennedy of The Shaws, who described a case in which it was impossible to establish what happened without invoking previous history.

We need to consider the pre-trial stage and the nature of the cross-examination. We need to make the process of reporting and trying rape a great deal less unpleasant for the putative victim. My noble friend Lord Phillips will note that I use the word "putative". If the process of the trial is as unpleasant as the offence itself, we will not get many convictions.

Reforming the law and increasing the proportion of convictions among those who actually get to court is not an answer. It is likely to lead to increasing convictions, but only because the wrong people will be
1098
convicted. Those who terrify their victim so much that their victim will not come forward are likely to be the worst offenders, who under these proposals will continue to get off. The bumblers who get to court may be more likely to be convicted, when they may not actually be guilty. We have not got the answer here in the Bill; we are attacking the wrong problem.

As ever, the noble Earl, Lord Russell, puts his point forcefully. However, it is not a question of either/or. We need to assist the victims when they come forward by giving them support, making them more convinced that the courtroom process will not be a terrifying revictimisation. That is partly a question of changing the law so that it better reflects a reasonable approach to their experience, but we also need to ensure that what happens to them in court is not terrifying.

We have introduced measures that are being rolled out now, which make it much easier for vulnerable or intimidated witnesses to give evidence in court. For example, they may give evidence behind screens, if that makes it easier for them, or even on video, away from the courtroom itself.

With the greatest respect to the noble Earl, Lord Russell, he is wrong to say that this is a one-approach issue. A whole range of approaches must be taken to make things easier. One of them is to make a substantive law that better reflects human experience.

I must correct myself on the precise figures for rape in 2001. The recorded number was 9,008, of which the percentage found guilty was 5.8 per cent. The number of people appearing on trial for rape was 1,267, of which the percentage found guilty was 41.2 per cent. I apologise for giving the figure wrongly before.

I thank all noble Lords who have spoken. I should remind the House that we are supposed to be debating Amendment No. 2, although we had a general tour d'horizon. So much the better, but I thought I should remind the Committee of what we should be doing.

Amendment No. 3 would leave out subsection (3), and it is consequential on Amendment No. 2. I have undertaken not to take the opinion of the Committee on Amendment No. 2 today. I hope that that is acceptable to the noble and learned Lord, Lord Lloyd of Berwick, who was good enough to support me. The issue is entirely separate from the one regarding subsection (4), which refers to Clause 78. Amendments Nos. 4 and 5 are jammed between Amendments Nos.3
1099
and 6, the merits of which have been canvassed only partially so far. I have not spoken on Amendments Nos. 4 and 5, but I shall do so when they are moved.

I should also remind the Committee, after all these hours of debate, that I gave the undertaking for another reason, which is related to Amendment No. 8. That was considered by some Members of the Committee, especially by the noble Lord, Lord Alexander of Weedon, as something that should be considered before a final decision was undertaken on Amendments Nos. 2 and 3, which seek to leave out subsection (3).

With respect, I should just say this. We have all, on all sides of the Committee, been speculating. The noble and learned Lord, Lord Ackner, thought that the low conviction rate was something to do with fees and something to do with all sorts of things. The prime reason why there is a low conviction rate is that there is an overall burden of proof on the Crown. The jury has to be sure before it convicts. That is the main reason, and that is what Clause 1(3) will do away with. It will substitute a concept of "a reasonable man" with a burden of proof on the defence and some compulsory presumptions as to non-consent.

I say this with respect to the noble and learned Lord. When he was engaged earlier in discussion with a certain noble Lord, he did not seem to appreciate that he has to approach the whole problem with a presumption of innocence in favour of the man. No one is a victim. We have the Crown on one side and the accused on the other, and there is not a victim until there is a conviction. Thereafter, as I tried to point out. the victim is very often the accused who, in many cases, has been erroneously convicted.

I seek clarification on one point. Is my noble friend suggesting that we have three choices: to take out the defence of unreasonable belief; to leave it as it is; or to accept Amendment No. 8? Presumably we have to have Amendment No. 8, which could be right; or have Clause 78, which may be wrong; or leave the law as it is? Is that correct? I think that I may have got myself into a muddle.

Yes, I think that that is more or less right. Ultimately, we will either have Clause 1, but without subsections (3) and (4), or we will agree to the Motion of the noble and learned Lord, Lord Ackner, to knock it all out—that Clause 1 should not stand part—just like that. Thirdly, Amendment No. 8, tabled by the noble Lord, Lord Thomas of Gresford, could commend itself to the Committee. That is about where we will get at the end of the day—although heaven knows when we are going to get there. I hope that that is right. In these circumstances, I beg leave to withdraw the amendment, to which we shall return on Report.

had given notice of his intention to move Amendment No. 3:
Page 1, line 13, leave out subsection (3).

§
The noble Lord said: I am advised by those at the Table that I would not be asked about Amendment No. 3 because, as I informed the Committee, it is consequential. I have, by leave, withdrawn Amendment No. 2. I shall therefore not move Amendment No. 3.

§Baroness Noakes moved Amendment No. 4:
Page 1, line 14, after "person" insert "sharing the characteristics of A

§
The noble Baroness said: In moving Amendment No. 4, I shall also speak to the other, very similar amendments in this group. Earlier, my noble friend Lord Lucas mentioned the role of professionals. I certainly do not denigrate the role of' professionals. I think that the role of professional lawyers in the previous debate, long though it was, has demonstrated the value that professionals can bring to the Committee. I believe that we will need that professional wisdom in considering this group of amendments. We will certainly require a knowledge greater than I possess.

§
into paragraphs (a) and (b) of Clause 1(3), which itself creates the objective test of reasonableness for a defendant's belief in consent. We are looking for whether a reasonable person sharing the defendant's characteristics would doubt whether consent had been given and then act to resolve such doubt. That is still an objective test, which If hope is not a return to the position following Morgan.

§
The Committee has already debated at length the objective test itself. Amendment No. 4 does not challenge that basic approach pro tem, but would temper it by requiring the jury to consider what a reasonable person showing the characteristics of the defendant would have thought or done.

§
This amendment was suggested by the Criminal Bar Association, which, as the Committee will be aware, accepted the basic approach to reasonableness in Clause 1(3). The intention behind the amendment is that if the defendant had, say, learning difficulties— the example given by the noble Lord, Lord Carlile, who I see is not in his place—the objective test applied to him would relate to someone with those types of learning difficulties. I do not think that it would be fair to apply the understanding and reasoning ability of, say, a person of average IQ to someone with severe learning difficulties. Similarly, the defendant may be quite young, perhaps a child as young as 10. In such cases we need to build a test around the characteristics of a child of that sort of age and not around an adult ability to understand the issues.

§
I accept that there may well be difficulties with the wording. I hope that the term "characteristics" cannot be interpreted too widely. I do not believe, for
1101
example, that it is a person's characteristic to be a drug addict—thus excusing narcotics-induced behaviour. I am open to suggestions on better drafting to achieve the modification of the objective test in the way in which I have outlined.

§
The amendment is put forward as a genuine attempt to ensure that the objective test of reasonableness, which the Government are introducing to remedy a lack of perceived fairness to putative victims, operates fairly for defendants. I hope that the Minister will either accept the amendment or say how the clause will operate to deal with the situation that I have described. I beg to move.

I oppose this amendment, as I think is apparent to the Committee from what I have already said on a previous amendment. If the defence of honest and mistaken belief is abolished, so be it. However, the Crown no longer has the overall burden of proof, and the defence is hobbled by conclusive presumptions and by the burden of proof of establishing conduct related to the abstract concept of the conduct of a reasonable person. That has already been considered, and the objections to it are manifest—they have been made from all sides of the Committee, including from these Benches. The amendment piles Pelion on Ossa as regards obscurity and unfairness.

There is now no need to prove actual intent. The noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, raised a fundamental objection to that on Second Reading. I referred to the sensitive approach of my noble friend Lord Astor of Hever. His speech in effect torpedoed the concept of a reasonable person—I shall come to characteristics in a moment—as a substitute for actual intent.

The noble Lord, Lord Carlile of Berriew, carried that to its ultimate conclusion to show how positions such as autism, mental state and IQ have to be taken into account, not only for the complainant—heavens—but for the accused. Justice works both ways. If a defendant has to prove that his conduct squares with that of a reasonable man, and he is half-dotty and the jury think that he is totally honest and did not intend to commit the crime, they have to convict him. That is the last dregs of injustice.

The situation is made even more difficult because there is a double whammy, like the double reasonableness in Clause 1(3). The first whammy to match is conduct, and the second is characteristics. Imagine the courtroom. Suppose one was trying to defend a pretty simple chap. In my young days in the West Country, quite a few people were certainly pretty dotty and now and then got into difficulties of the kind that we are discussing. They had the benefit of the presumption of innocence, and some got off and some did not. I cannot say whether that was right or wrong, because no one knows. The point was that machinery operated. The amendment to add characteristics, although intended to mitigate the unfairness of Clause 1(3) as related to the conduct of a reasonable person, does not do so. It imposes a further burden.

1102
Let us look at the practical situation. How on earth will the accused in a trial establish the burden of proof? He has to establish a requisite kinship between his characteristics and those of an abstract norm whom the jury might think of as a reasonable person. Would that reasonable person be likely to find himself in the dock in a rape trial? With respect, the whole idea is pretty incongruous. It cannot do justice. The Minister will have a fundamental objection to it and will not accept it.

Suppose counsel for the defence gets hold of the Shorter Oxford English Dictionary to look up "characteristics" to see what he has to establish. He would have to establish a match of some distinct, distinguishing marks of character and quality of character between his client in the dock and the invisible reasonable man. How will he do that? The burden of proof is on him; the Crown does not have to prove anything.

The defence counsel could call evidence. Are we to have the evidence of psychiatrists and psychologists to establish the double match in all rape trials? Heaven forfend. What would happen if my noble friend's amendment were accepted? Would the match be left to the jury, in the absence of evidence, so that they use their common sense to resolve the last-ditch defence for which the burden of proof is on the accused? Counsel could say, "It is matter for you, members of the jury; I can't lecture you on it. You'll have to do your best and afford a form of palm-tree justice". However, he would not tell them that the maximum sentence was life imprisonment.

Quite seriously, how is counsel to advance a reasoned defence? It is all but impossible. There is no evidence. Imagine the simple man in the dock. Counsel has to prove that that man's characteristics match the abstract norm. That is nonsense, and would create a manifest injustice.

I hope that I can illustrate the problem that the amendments are intended to address with the case of Luc Thiet Thuan, which was decided in the Privy Council some years ago. In that case, a young man in Hong Kong had suffered as a child an injury that caused him brain damage, lowering his ability to control himself under pressure. In an episode with a young lady, she made disparaging remarks about his person, whereupon he took a knife and killed her. At the trial in Hong Kong, there was medical evidence to the effect that he was brain damaged, with the results that I have conveyed to Members of the Committee.

Accordingly, the argument in that case was that, when it came to the defence of provocation, Luc Thiet Thuan should be compared with a reasonable person of his age and sharing his characteristics, including the fact that he had brain damage. In other words, the reasonable person with whom he was to be compared was virtually the same man. I argued the case on behalf of the appellant. In the Privy Council, their Lordships divided by four to one against me, the one for me being the noble and learned Lord, Lord Steyn.

1103
When the same principle came before the Court of Appeal in England some time later, that court decided not to follow the majority decision from the Privy Council. Highly unusually, it decided to follow the judgment of the noble and learned Lord. Accordingly, that principle became embodied in the law. It went to the House of Lords, and their Lordships decided by three to two to follow his judgment. But each of the three majority decided to follow the judgment of the noble and learned Lord, Lord Steyn, on different grounds.

That is the kind of problem that can arise in relation to the concept of a "reasonable person". It so happens that I lost for the appellant in that case in the Privy Council. When I subsequently came before the courts of appeal in England, I lost again when I appeared for the prosecution because the principle was used against me, with my argument succeeding in those courts.

The purpose of inserting the words "sharing the characteristics of A" is to reduce the objectivity of the test proposed in Clause 1(3) so that the "reasonable person" becomes "A". The "reasonable person sharing the characteristics of A" becomes "A". He is of the same age and sex and, if one has brain damage, the other has brain damage. Therefore, the test ceases to be objective and becomes almost subjective.

I am much obliged to the noble Lord for his clarification. My point is not that I am in support of or against the amendment; it is simply that the amendment illustrates the complete unworkability— to use that word again—of the way that the Government are approaching this problem. There is a far simpler solution over the page in the Marshalled List of amendments, but we shall not reach that point for a considerable time because we must go through Clause 78 first. This amendment seeks to try to make sense of the issue and to make Clause 1(3) accord with the current law on provocation in this country. As I said, it illustrates all the problems.

It seems to me that if we must have an objective test, then, in theory, the amendment would improve the Bill. I also believe that the noble and learned Lord has already conceded that the amendment must succeed by the answers that he gave to the points raised by the noble Lord, Lord Carlile, during the previous debate. In relation to the examples given by the noble Lord, Lord Carlile, he said that obviously one had to consider the characteristics of the individual and judge him by the standards of a person in his condition. That would get us into a rather odd situation, because one of the two people whom the noble Lord, Lord Carlile, postulated was someone who periodically had attacks of a mental illness which made him act wholly unreasonably. Therefore, we shall now have a "reasonable person" who has the characteristic of
1104
periodically acting wholly unreasonably. That is perhaps a little difficult for a jury, and perhaps even your Lordships, to understand.

Although I believe that in theory the amendment would improve the situation, where on earth would it get us? Let us suppose that the defendant says, "Well. my characteristic is that I have only recently arrived in this country. I used to live in a country far away where, whenever ladies said 'no', they meant 'yes'. Therefore, that is my background and my characteristic". Will that be a defence, and how will it be dealt with? Will people be called from that country to prove that that is the habit of that country, and will the prosecution be rebutted?

Once one gets down to individual characteristics, the trials will go on indefinitely. Is that really what the Government want and, although the logic would be improved, does it not demonstrate the fallacy of the whole approach? However, if we must have the whole approach, then I would prefer to have it with the amendment rather than without it.

I do not know what the noble and learned Lord, Lord Falconer, studied for his English O-level texts, but I read To Kill a Mockingbird. If one applied the Bill as it stands to the rape trial in To Kill a Mockingbird, then the man would be convicted because clearly no reasonable man—that is, a white man—would ever believe that a white woman would consent to sex with a black man. If we made the amendment that my noble friend suggests, then the defendant would be let off, as indeed he should be, because we would make the test relevant to him.

That is perhaps taking things to extremes but I believe that, to some extent, it illustrates the difficulties that I have with the Government's current drafting, in that one is trying to insert the character of the reasonable man, having assigned characteristics to him in respect of the relationship between the individuals in the case. One will be in great difficulties in deciding what those characteristics should be. I do not share my noble friend's view that they should necessarily be the characteristics of the defendant.

I believe that point has been dealt with extremely well by others who have spoken. But I believe that it all adds up to a considerable argument in favour of the phraseology employed by the noble Lord, Lord Thomas of Gresford, in Amendment No. 8, to which I very much look forward.

I should declare an interest in the "reasonable man" in the context of Clause 80. As we shall probably not reach that point until after Easter, I thought that I should signal my concern. I am very unhappy indeed about the concept of a "reasonable man" in the context of Clause 80. While I suspect that many noble Lords are right to say that this amendment is not ideal, if we must have the concept of a "reasonable man", it would be slightly better with this amendment than without it.

I can understand the temptation to seize on the phrase "a reasonable person" in Clause 1(3)(a) and to seek to define such reasonableness in respect of that person. But I looked a little further along the line and discovered that we should be talking about "a reasonable person" in all the circumstances. That may or not be the Minister's response to this debate. But I believe that in the To Kill a Mockingbird case, or the case of a defendant who has learning difficulties or is a drug addict or whatever, those circumstances would have to be taken into account. I hope that that is what the noble and learned Lord will say.

Broadly, it is. Obviously when one is dealing with the standard of the reasonable person or, to use the suggestion of the noble Lord, Lord Thomas of Gresford, a person without a reasonably held belief—one must ask whether there is a difference between a reasonable person on the one hand and a reasonably held belief on the other—some standard must be set and plainly it must be set by the circumstances of the factual situation that the jury is addressing. We believe that it is possible to frame a legal test where the jury can be asked, "Do you think that the prosecution has proved that the defendant's belief was reasonably held?" That is broadly the position that we want to arrive at.

In some cases, the characteristics of the defendant will be relevant; for example, his or her age, or the kind of example given by the noble Lord, Lord Carlile, where a person is suffering from an identifiable mental impairment. But we do not need to go so far as to say that the jury must take into account all the characteristics of the defendant when considering what the reasonable person would have done in the situation.

In the case of Smith (Morgan), the noble and learned Lord, Lord Hoffmann, dealt with this very issue in relation to provocation. He was critical of the approach of directing the jury to attribute certain characteristics to the reasonable man. He said that approach had,
produced monsters like the reasonable obsessive, the reasonable depressive alcoholic and even the reasonable glue sniffer".
The noble and learned Lord, Lord Hoffmann, is of the view, and I share that view, that the judges and the jury are capable of identifying which characteristics are relevant and which are not. He said that judges should describe the objective element in the provocation defence in simple language. That is the approach that we would adopt.

I think that juries are perfectly capable of evaluating the evidence presented to them and of deciding the extent to which the personal characteristics of the defendant should contribute to their assessment of whether he acted reasonably once doubt about the consent of the other party had arisen.

We can debate for hours precisely how that is put in legal language. We think we have done it. We do not for one moment dissent from the approach taken by the noble Baroness in this respect. I do not believe she
1106
is suggesting that every single characteristic necessarily would be taken into account, even the fact that the defendant is unreasonable as suggested by the noble Viscount, Lord Bledisloe. What I think the noble Baroness is trying to get at is the fact that where appropriate one must have regard to the circumstances including, for example, age or mental dysfunction on the part of a defendant. We would agree with that. We believe that we have got there without getting to the absurd point identified by the noble Viscount, Lord Bledisloe.

Very often in a case it is the word of the person making the accusation against the word of the defendant. It is not always the case that it has been established that a rape took place or, indeed, that even sexual intercourse took place. The accused makes the accusation and the defendant is defending a negative because he continues to say, "I did not do it".

Clause 1(3) introduces a test against whatever argument is put up by the defendant and asks, "Do you believe what that person says? Would what is said by that person about what they believe happened or did not happen on that particular occasion be said by a reasonable person? Is it believable?" It seems to me to be very suspect if, on the grounds that the person is not convincing or even if it is perceived that that person is not telling the truth, irrespective of that person's condition—whether that person is mentally impaired, just a waster or is reasonable—the test is put and on the basis of whether it is believed that someone is telling the truth rape is established.

Like the noble Viscount, Lord Bledisloe, if the concept of a reasonable man test has to be made, I would rather have a definition of the way in which that person is being judged. However, like many others who think that subsection (3) is unworkable, I believe there is the difficulty of pressing a test of a reasonable man with either no definition—in other words the reasonable man is in the eye of the beholder, the members of the jury— or with the amendment tabled by my noble friend, which at least defines that the person is being judged in the shoes that he wears.

We are speaking of a case in which no one knows whether rape has been committed or even whether sexual intercourse has taken place, and in which everyone is making judgments in a vacuum. It seems to me that Clause 1(3) throws up so many problems that I cannot see how it could work in practice. However, if it has to work at all, some definition of what is a reasonable person, in other words how that person would be judged, needs to bear at least some characteristics of the person concerned.

As regards the first point raised by the noble Baroness, Lady Blatch, she is right. The question only arises once the jury is satisfied, first, that the act of sexual intercourse has taken place and, secondly, that it was without consent. It arises only
1107
when the issue is belief in consent even though there was not consent. She is right to say that those are stages which must first be gone through.

As far as concerns the question of whether one wants to try to define in detail the reasonable person and what would be his or her approach to the facts, I do not think that would be right. What one is saying, as in many other areas of the law, is that the jury must decide what was reasonable. The jury has to decide, for example, in relation to provocation, how a reasonable person would have acted. The jury has to decide whether or not the amount of defence used by the defendant was reasonable self-defence. The more one complicates it, the more one adds accretion to accretion, the harder one makes it for the jury to decide and the more one gets away from the basic question, "Was it reasonable?" I believe that the approach we have adopted gets to the point.

We shall listen carefully to what is said. However, I do not believe that even the most experienced lawyers in this House believe that one cannot ask a jury to evaluate the question of the reasonableness of the behaviour of a particular defendant.

What was said by the Minister in his speech was reasonable. However, the trouble is that it conflicts with the words in the Bill. The words in the Bill require you to take the abstract objective, reasonable person and decide what he would have done in the circumstances. "Circumstances" means surrounding facts; that is, the party they had been to; what the lady was wearing; what the lady had said, and so forth. The circumstances are not the peculiar characteristics of the individual: his extreme youth, his sexual inexperience, his mental health, and so forth.

If the Minister was serious in his reply to the noble Lord, Lord Carlile, that the mental health of the individual would be taken into account as being a characteristic, there must be some such words as proposed by the amendment and then it is not the circumstances at all; it is a reasonable person of the type of the particular accused.

I yield to no one in the experience of the noble Viscount in relation to criminal law. I know that his experience is vast in that respect. I have set out what we seek to achieve in relation to the Bill. If we have not managed that as a matter of law, we shall consider what was said by the noble Viscount in relation to that.

However, I have made clear the approach that we are adopting and why we think Clause 1(3) gets there. If we are wrong in relation to that we shall consider it and come back on Report.

I totally agree with the reservations of my noble friend Lady Blatch. My noble friend seeks some form of definition on the perfectly logical and reasonable basis that without it no jury will understand what it has to deal with. I believe the reply was, "We are working on a form of words". Perhaps that is not right.

I thank the noble Lord for giving way. We believe that one can pose to the jury the question of how a reasonable man would have behaved in all the circumstances and the jury would understand the question.

I am grateful to the noble and learned Lord. It comes to this: it is not workable as it stands. What will be done to try to make it more workable if we are to abolish actual intention? How will that be done?

If the noble and learned Lord were to consider the standard direction to a jury in provocation where the reasonable person comes to the fore, he would find that if the jury is satisfied that the ingredients of murder have been made out, it may consider whether murder should be reduced to manslaughter by reason of provocation either by word or deed, which, first, makes the defendant no longer the master of his own mind and secondly would make a reasonable person sharing the same characteristics of the defendant of age, sex and background act in the way that the defendant had acted. The word "characteristic" may be statutory, I cannot remember, but is certainly in the direction to the jury. Those are familiar words which are certainly not "in all the circumstances". If characteristics are to be conveyed in the statute I respectfully suggest that the word that is commonly used should be employed.

In one of his replies the noble and learned Lord talked about a "reasonably held belief'. That is an excellent phrase and I wish the noble and learned Lord would put it in his Bill. I find it easy to understand and it adapts to all the circumstances.

I find this situation difficult to understand: suppose one has a couple in a long-term sado-masochistic relationship, who do all kinds of strange and wonderful things to each other. After one particular session the woman cries rape. What function has a "reasonable man" to perform in order to have any view on that relationship? One cannot impose a "reasonable man" on that relationship and expect him to start having views. The whole thing is bizarre and strange. None the less, it is a circumstance in which rape could have taken place.

One must establish the reasonableness of the belief of the man in dealing with consent. But this "reasonable man" creature does not belong there. I wish the noble and learned Lord would return to the ordinary English he uses when describing the Bill's function and put it in the statute rather than using the words we have in front of us.

I take up the points of the noble Lords, Lord Thomas and Lord Lucas. I am tempted to ask, although I shall not, where, in the sado-masochistic relationship described by the noble Lord, does "reasonably held belief' fit. It raises all the same legal problems.

1109
The words, "the characteristics of the defendant" are not in the provocation statute. The courts have developed an approach. That is, keep it simple, leave it to the jury, and do not think about the reasonable obsessive, the reasonable sado-masochist or the reasonable glue-sniffer. Just put the issue straight to the jury. That is what we have done in this provision.

We could talk about the issue for a long time. The question is whether we have reached a point where the judge is able to ask the jury whether the person acted reasonably in all the circumstances. We think it is a simple question and one a jury can understand.

I thank all noble Lords who have taken part in the debate and in particular for contributing to my increasing legal knowledge. I now have a greater knowledge of the defence of provocation, which may well prove useful one day.

The Minister says that it is a simple question, which is put to the jury for it to decide. I understand the simplicity of that approach. However, I have raised my concerns. I tabled these amendments because I was uncertain that juries will in practice be able to handle Clause 1(3) as drafted without an amendment to deal with the particular characteristics of the defendant before them. I shall of course read carefully what the noble and learned Lord said and reflect further on the matter. But I am troubled that it may not be clear beyond peradventure that the present formulation will mean that instances such as learning disability or extreme youth would automatically result in those characteristics of the defendant being taken into account.

Beyond that, we are underlining a wider concern about how the Government's redraft of the sexual offences legislation will work in practice. I know that we shall return to that matter in due course. For the time being, I beg leave to withdraw the amendment.

§
The noble Lord said: I explained to the Committee that I would move Amendment No. 6 separately. It is not a consequential amendment. I moved Amendment No. 2 and Amendment No. 3 was consequential on it. This was my instruction from the Table. Then I was informed that the chair would call Amendment No. 6. All I am doing is moving it and taking as little time as possible in doing so. I have spoken to Amendment No. 6 already regarding the complexity and unworkability of Section 78. Other Members of the Committee may wish to speak to the amendment as of course it is supported by various other noble Lords. I beg to move.

I thought that Section 78 would be the subject of a separate debate at some stage. It raises all kinds of further difficulties and
1110
complexities which are not raised purely by Clause 1(3). However, I was leaving the debate to other Members and in particular to the noble Baroness, Lady Noakes.

Perhaps I may help the noble and learned Lord. I understand that we shall be debating the substance of the Section 78 presumptions and all that sails therein in the next group of amendments, which I believe we shall be taking after the dinner interval.